author: HOLMAN, Judge.

text:
    Oscar P. KASTEN, Appellant, v. Ora N. GUTH, Respondent.
    No. 50373.
    Supreme Court of Missouri, Division No. 1.
    Feb. 10, 1964.

      Stephen N. Limbaugh, Limbaugh, Limbaugh & Russell, Cape Girardeau, for appellant.
    Francis Toohey, Jr., Roscoe D. Moore, Perryville, for respondent.
   HOLMAN, Judge.

In this action appellant, Oscar P. Hasten, seeks to contest the election of respondent, Ora N. Guth, to the office of county superintendent of public schools at the school election held on April 2, 1963. The circuit court sustained respondent’s motion to dismiss the notice of election contest filed by appellant. Contestant has duly appealed from that judgment. We have jurisdiction because the case involves the title to an “office under this state.” Article V, § 3, Constitution of Missouri, 1945, V.A.M.S.; Armantrout v. Bohon, Mo.App., 157 S.W.2d 530.

The Notice of Election Contest reads as follows:

“Take notice that I, Oscar P. Hasten, hereby present this notice to the Circuit Court of Perry County, Missouri, for the purpose of contesting the election of Ora N. Guth to the office of County Superintendent of Schools for Perry County, Missouri, at the election held on April 2, 1963, and as grounds for such contest state as follows:
“1. On Tuesday, April 2, 1963, an election was held in Perry County, Missouri, for the purpose of electing, among other officers, a county superintendent of schools for Perry County, Missouri.
“2. The printed ballot for this office contained the name of Ora N. Guth, she being the only candidate who had announced for this office in accordance with the requirements of Section 167.020 RSMo 1959 [V.A. M.S.],
“3. About 15 days before the election held April 2, 1963, Oscar P. Kasten decided to run for the office of Perry County Superintendent of Schools and announced his candidacy as a write-in candidate through the media of newspapers, radio, posters, printed cards and word of mouth.
“4. The formal canvass of the ballots cast for this office revealed the following tabulation: For Ora N. Guth 1107 votes; for Oscar P. Kasten 1084 votes; for Oscar Kasten 67 votes; for Oscar P. Kassel 1 vote; for Oscar P. Casten 1 vote; for Roger Kasten 1 vote; for Leo Rozier 1 vote; for James Burgess 1 vote.
“In addition, there were 145 votes which were voided because the name of Oscar P. Kasten was written in but the name of the printed candidate was not crossed out. On the basis of the foregoing Ora N. Guth was declared the winner by a margin of 23 votes over her write-in opponent Oscar P. Kasten.
“5. Contestant Oscar P. Kasten avers that he should have been declared the winner of such election for the following reasons: (a) The sixty-seven (67) votes cast for Oscar Kasten were intended for contestant and should have been counted for him. (b) The one (1) vote cast for Oscar P. Kassel was intended for contestant and should have been counted for him. (c) The one (1) vote cast for Oscar P. Casten was intended for contestant and should have been counted for him. (d) The one (1) vote cast for Roger Kasten was intended for contestant and should have been counted for him. (e) The one hundred forty-five (145) voided votes which had contestant's name written in but which failed to have contestee’s name crossed out were intended for contestant and should have been counted for him. (f) The votes cast for Oscar P. Kasten, Oscar Kasten, Oscar P. Kassel, Oscar P. Casten and Roger Kasten were all intended to be cast for one and the same person, Oscar P. Kasten, and all said votes should have been counted for him. (g) The vote cast by Jerri Carter and that cast by Joan Lorberg were invalid because they were cast in the City of Perryville District when such persons were residents of the Hunt District and such votes should have been cast in the Hunt District, (h) The vote cast by Winifred Ketchum and that cast by Mary Lewis were invalid because such persons had not resided in the State of Missouri one whole year before the election of April 2, 1963.
“Wherefore, contestant, Oscar P. Kasten, prays for a recount of all votes cast in the election of Perry County Superintendent of Schools held April 2, 1963, in Perry County, Missouri; that all votes cast for Oscar Kasten, Oscar P. Kassel, Oscar P. Casten, Roger Kasten and all void ballots be counted for contestant; that the votes of Jerri Carter, Joan Lorberg, Winifred Ketchum and Mary Lewis be voided and not counted for the reasons mentioned in this notice and for such other and further relief as may appear proper and just.”

Ora N. Guth filed the following motion to dismiss the foregoing notice: “1. Comes now the contestee and moves to dismiss the notice of election contest filed by contestant on the ground that such notice fails to state a claim upon which relief can be granted. 2. Contestee further moves that the notice of election contest filed by contestant be dismissed for the reason that he has failed to comply with the mandatory provisions of § 167.020 RSMo 1959 [V.A.M.S.] pertaining to the requirement that all candidates for the office of County Superintendent of Schools must file a declaration of candidacy at least 45 days before the date of the election and that he is therefore not entitled to file this contest nor to hold the office of County Superintendent of Schools.” As stated, the trial court sustained said motion to dismiss.

We will first consider the allegations of paragraph 2 of the motion. While it states that contestant “is therefore not entitled to file this contest nor to hold the office of County Superintendent of Schools,” we construe that portion of the motion as alleging that contestant was disqualified from election or was not entitled to be elected to the office in question because he had not filed a written declaration of his candidacy at least 45 days before the election.

It is provided in § 167.010 (unless otherwise indicated all statutory references are to RSMo 1959, V.A.M.S.) that “[t]he qualified voters of each and every county in this state shall elect a county superintendent of public schools at the annual district school meeting held on the first Tuesday in April, 1943, and every four years thereafter. * * * ” Section 167.020 provides that “[a]t least forty-five days before the annual school meeting in any year when a county superintendent of public schools is to be elected, any person desiring to be a candidate for election to the office of county superintendent of public schools must file with the county clerk a written declaration of his candidacy for the office, which declaration shall be filed by the county clerk and no filing fee shall be charged. * * * ” Respondent contends that the quoted portion of § 167.020 is mandatory and that no person is eligible to be voted for at the election unless he has filed a written declaration within the time specified therein. Appellant contends that the provision in regard to filing a written declaration of candidacy relates only to the requirement for a candidate to have his name printed on the ballot, but that “the printing of one’s name on the ballot is not a mandatory requirement for election. A write-in candidate who has not filed a declaration of his candidacy and whose name is not on the printed ballot may still be elected if he receives the greatest number of votes.”

As indicated by the foregoing, a solution of the question presented requires a construction of the provisions of § 167.020. It is elementary that the primary rule to be followed in the construction of statutes is to ascertain and give effect to the intent of the legislature. Taney County v. Empire District Elec. Co., Mo.Sup., 309 S.W.2d 610. A strict literal construction of the quoted portion of the statute would tend to support the contention of respondent. However, in determining the legislative intent, we think the words used in the statute must be considered in connection with certain basic fundamental principles that are firmly established in this state.

We have said that “the very taproot and reason for any election at all among a free people is that the majority may rule * * *. Election laws must be liberally construed in aid of the right of suffrage. State ex rel. [Wills] v. Hough, 193 Mo. [615], l. c. 651, 91 S.W. 905 [l. c.]; Hale v. Stimson, 198 Mo. 134, 95 S.W. 885. The whole tendency of American authority is towards liberality to the end of sustaining the honest choice of electors.” Nance v. Kearbey, 251 Mo. 374, 158 S.W. 629, 631. While mandatory statutory requirements must be followed, “[e] lections should be so held as to afford a free and fair expression of the popular will * * State ex Inf. McKittrick ex rel. Martin v. Stoner, 347 Mo. 242, 146 S.W.2d 891, 894. The statutes of this state indicate that it is the established public policy that a qualified voter may vote for any candidate of his choice by writing the name of such person on the ballot and the voter is not restricted to voting for the candidates whose names are printed thereon. Our general election laws contain the express provision that “[i]f the voter desires to vote for one or more candidates whose name or names do not appear on the printed ballot he may do so by drawing a line through the printed name of candidate for such office, and writing below such canceled name the name of person for whom he desires to vote, and placing a cross mark in the square at the left of such name.” Section 111.580(2). Other statutes, by reference, have made that provision applicable in elections conducted in cities of the first, second, third, and fourth classes. See §§ 122.210, 122.400, 77.040, and 79.030. Similar provisions appear in § 423 of the Charter of Kansas City. See also § 122.960 relating to elections in the City of St. Louis; Gumm v. Hubbard, 97 Mo. 311, 11 S.W. 61; Bradley v. Cox, 271 Mo. 438, 197 S.W. 88; Ousley v. Powell, Mo.App., 12 S.W.2d 102.

In construing § 167.020, we think it is significant that it contains no express provision to the effect that no person should be voted for whose name does not appear upon the printed ballot. We also note that subsection 2 of that statute contains the following: “The voting for county superintendent shall be by ballot and all ballots cast shall be counted for the persons for whom cast, and it is hereby made the duty of the members of the board of directors and the chairman and secretary of the annual school meeting to see that each ballot so cast is counted for the person receiving the same * * It is, of course, implicit in every election statute that the ballot shall be counted for the person for whom cast. We therefore, have concluded that this provision was inserted in the statute in order to make it clear that the ballot should be counted for any person for whom it is cast and that the voting not be restricted to the candidates printed on the ballot.

We have also considered our constitutional provisions, i. e., Art. I, § 25, that “all elections shall be free and open; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage,” and Art. VIII, § 2, which provides that all qualified electors are “entitled to vote at all elections by the people.” It is the majority rule in this nation that statutory provisions expressly stating that no person shall be voted for unless his name is printed on the ballot are unconstitutional under constitutional provisions similar to those above quoted. See Littlejohn v. People, 52 Colo. 217, 121 P. 159, Ann.Cas.1913D, 610; Annotation, Ann.Cas.1913D, 614; 18 Am.Jur., Elections, § 191, p. 307. It therefore appears that if § 167.020 should be construed in accordance with respondent’s contention there is good authority for holding it unconstitutional. We need not expressly so hold. It is sufficient to say that it is presumed that the legislature did not intend to enact an unconstitutional statute.

We also note that respondent in her brief concedes that “had no one filed for the office of county superintendent of schools and a blank ballot would be prepared, write-in candidates would be permitted, or the election would be a nullity but where you have candidates who have complied with the statute, no other persons would be entitled to be elected at such election.” We do not agree that the situation would have been any different in the event no one had filed. If it is mandatory that a candidate file a timely declaration in order to be qualified for election, then that requirement should be applied in every event. The situation suggested in respondent’s brief tends to accentuate the fact that the construction for which she contends is unreasonable.

In view of all of the foregoing, we have concluded that the legislature, in enacting § 167.020, did not intend to restrict the electors to voting for the candidates printed on the ballot, but, on the contrary, intended that any elector could vote for a person of his own selection by drawing a line through the names printed on the ballot and writing in the name of his candidate. Any other conclusion would attribute to the legislature an intent contrary to our established public policy to the effect that a qualified voter be permitted to vote for any person of his choice and that the will of a majority of the voters should prevail. We accordingly rule the point under consideration contrary to the contention of respondent.

As to the remaining point raised by respondent’s motion to dismiss, we are clearly of the opinion that the appellant’s notice states a claim upon which relief can be granted. It is alleged that Oscar P. Kasten received 1,084 votes and that 67 votes were cast for Oscar Kasten which were intended to be voted for Oscar P. Kasten, contestant herein. For the purposes of the motion these allegations are considered to be true. Hence it must be ruled that the 67 votes cast for Oscar Kasten should have been counted for contestant, which would have given him a total of 1,151 votes, and he should therefore have been declared the winner of said election.

In the case of Gumm v. Hubbard, 97 Mo. 311, 11 S.W. 61, Caleb Gumm contested the election of Joel D. Hubbard. The court approved a recount wherein “one vote for ‘J. D. Huba,’ one for ‘J- D. Hubba,’ one for ‘Huber' one for ‘J. D. Hub,’ and one for ‘D. Huber’ were counted for contestee. Effect should be given to the will of the electors, and it is now generally agreed that the circumstances surrounding the election may be given in evidence, on an election contest, to explain ambiguities in the ballots. McCrary, Elec. § 396; Cooley, Const. Lim. 611; 6 Amer. & Eng.Cyclop.Law, 431. There were but two candidates for this office, and their names are so unlike that there is no danger of confusion as between them. The election, as to these candidates, was local, confined to the county where they resided, and the voting population seems to have been largely German. Under the evidence, the court might well have found that these ballots were for the contestee, and there would have been no error in counting them for him.” 11 S.W. 63.

“Generally, where the voter’s intention is found it should not be defeated by the fact that the name of the candidate is misspelled, the wrong initials are employed, or some other or slightly different name of similar pronunciation has been written instead of that of the candidate actually intended to be voted for. If there is a misspelling of a candidate’s name when written in by a voter or when printed on the ballot, evidence of the circúrilstáncés surrounding the election ' is ' admissible for the purpose of showing that the ballot was intended for a particular candidate, unless the name is so different that thus to apply it would be to contradict the ballot itself or unless the ballot is so defective that it fails to show any intention whatever. Although some courts deem themselves bound by a stricter rule, it has been held that a ballot which contains a candidate’s surname only may be counted, even though there are other persons in the county having the' same surname, where it is shown that there was no other person of such name who was a candidate for the same or any other office. This rule is also followed if only the middle name of the candidate is wrong, if the first name is abbreviated, or if the wrong initials are used. Furthermore, where there are two persons in the same district with the same name, one of them a candidate, and the other not, and there are ballots which do not designate which of these persons is voted for thereon, parol evidence may be received to show for whom the votes were intended.” 18 Am.Jur., Elections, § 195, p. 311.

In 29 C.J.S. Elections § 180, pp. 263, 265, it is stated that “a candidate for public office is generally entitled to have his name written upon the official ballot by voters who desire to support him as their choice, although he has not been nominated by any convention, caucus, or meeting, and under most statutes, when an elector desires to vote for a person whose name is not on the ballot he may do so by writing his name on the ballot in an appropriate place, notwithstanding the person whose name is thus written in was not eligible to have his name printed on the ballot. * * * [I] f the voter’s intention can be determined, that intention will not be defeated because of an irregularity in the writing of the candidate’s name. Thus ballots have been held not invalidated because the voter misspelled the candidate’s name or address, as where the error was so slight and of such a nature as to render the name as written within the scope of the doctrine of idem' sonans; or because the voter wrote some other or slightly different name of like or similar pronunciation, as where there is a clear relation between the appearance or sound of the name written in and that of the candidate and only one man of a particular name is a candidate for the office; or where the voter omitted the candidate’s initial or employed a wrong initial, or wrote the candidate’s initials in place of his given name, or wrote only the candidate’s last name, there being no other candidate of the same name to be voted for.” See also, Annotation, 86 A.L.R. 2d 1025.

Certain questions are suggested by the allegations of the notice and the points briefed that will likely arise upon the trial of this case. Due to the nature of the case we deem it advisable to express our views upon those questions. In accord with the foregoing authorities, we are of the opinion that evidence is admissible which bears upon the intent of voters who wrote in the name of Oscar Kasten, Oscar P. Kassel, Oscar P. Casten, and Roger Kasten on their ballot. As to the votes cast for Oscar Kasten, we have the view that said name is so similar to Oscar P. Kasten that they should be counted for contestant unless it should appear from the evidence that there was a person residing in Perry County (other than contestant) who had the name of Oscar Kasten and who possessed the qualifications specified in § 167.-010 for the office here involved. In the event it should appear that there were on the date of the election two residents of Perry County bearing the name of Oscar Kasten and possessing the aforesaid qualifications, then the court shall determine from ■all of the evidence in the case the identity of the person for whom those voters intended to cast their ballot. There were 145 ballots which were alleged to have been ■voided because the name of contestant was written in but no line was drawn through respondent’s name. Contestant alleges that those votes should have been counted for ■him. We have the view that those ballots should not be counted for either appellant or respondent. Ousley v. Powell, Mo.App., 12 S.W.2d 102.

The judgment is reversed and cause remanded for further proceedings in accordance with the views herein expressed.

HYDE and DALTON, JJ., concur.

HOLLINGSWORTH, P. J., concurs in result.


source: Caselaw Access Project

author: PRITCHARD, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Robert ANDERSON, Appellant.
    No. 49550.
    Supreme Court of Missouri, Division No. 2.
    Feb. 10, 1964.

      Al Mendelson, Kansas City, for appellant.
    Thomas F. Eagleton, Atty. Gen., Jefferson City, Frank P. Motherway, Sp. Asst. Atty. Gen., St. Louis, for respondent.
   PRITCHARD, Commissioner.

Defendant was convicted by the verdict of a jury of murder in the second degree, and his punishment was set by the jury at imprisonment in the State Penitentiary for 15 years. Credit was given on the sentence for eight months spent by defendant in the county jail.

On the appeal here, defendant has filed no brief. We therefore review all of his .assignments of error properly raised in his motion for new trial. Supreme Court Rule 28.02, V.A.M.R.

The facts of this case will be stated in their light most favorable to the state by reason of defendant’s assignment of error (No. 14) of the trial court in overruling his motion for judgment of acquittal made at the close of all the evidence.

It was admitted by counsel for defendant in his opening statement that the deceased victim, Clarence Steele (sometimes in the record referred to as Eddie), was shot with the shotgun which has been marked as Exhibit (A) for the state. There was other evidence, below noted, of these admitted facts. Defendant, a man 54 years of age, occupied an apartment at 2706 Benton Boulevard in Kansas City, Missouri, with one Frank Walker.

On the day of the shooting, September 18, 1961, Officer Don Lanning, of the Kansas City, Missouri Police Department, received a call to go to the 2700 block of Benton Boulevard to investigate a reported shooting. He found the defendant in the back yard at which time the defendant told him the victim and Walker had attempted to take over the apartment; that defendant on several occasions had told the victim he wasn’t going to allow this, and on this occasion defendant shot him. Later, about 20 or 25 minutes, defendant told another story that the victim had produced a knife and was threatening him with it. Officer Lanning was the first person from the Police Department to view the scene. The body of deceased was lying partly in a hallway and partly in the living room of the apartment. Defendant told investigating officer Harlow that he had shot the victim, with whom he had had previous trouble over a length of time; that he had been afraid of the victim and had armed himself with a shotgun, and when the victim came into the room in which he was sitting he shot him with a .16 gauge shotgun. A spent shell from the shotgun was removed by the officer at the scene of the shooting, and two live shells were taken by the officer from the possession of defendant.

Upon further questioning of defendant, Officer Harlow learned his then version of the shooting. Defendant stated that he had been sitting on the divan facing east at the far west end of the apartment in a room approximately 9 by 12 feet in size. Defendant had come home that day about 11:30 P.M. and found Frank Walker and deceased in the kitchen drinking. Defendant and deceased started arguing, so defendant left, returning about 2:00 or 2:05 A.M., at which time the victim and Walker were still drinking. Defendant went on into the west room, laid down on the divan and went to sleep. He was later awakened by deceased “hollering” at him and stating that he was going to come in and break his neck. Believing the threat, defendant got up, went to a small closet in the west room, got his shotgun and went back over and sat down on the divan. He told deceased not to come in there or he would shoot him, and deceased did come on in and defendant fired the gun and shot him. At the time of the shooting, the victim, Mr. Walker and defendant were the only persons present.

Frank Walker gave his eye-witness version of the incident as follows: He was a roommate of defendant, Robert Anderson, on September 18, 1961. The shooting occurred just a few minutes after deceased and defendant got home, at which time defendant came in to where Walker was sleeping, woke him and said, “You better make Eddie (deceased) go on home or there will be trouble.” Defendant then went back and got the gun and sat down on the lounge. Walker finally got Eddie in the notion of going home, and came into where defendant was sitting. Defendant said, “You better hurry up and get him on home,” and defendant came to the door between the two rooms, and Eddie also went to the door, started to go out, turned around and said, “Robert, we haven’t had no trouble, what have I did to you?” Outside of that there was no other word said. Defendant “just up and shot him.” Deceased had stuck out his hand to shake hands with defendant and Walker could see no knife in it, and at that time deceased was 10 feet from defendant, and had taken no steps toward him.

Defendant was charged with the offense of first degree murder under Section 559.010, RSMo 1959, V.A.M.S. As noted, defendant was convicted of the lesser included offense of second degree murder. The elements of that offense are set forth in the case of State v. Strong, Mo., 339 S.W.2d 759, 764 [4, 5], as follows: “Murder in the second degree is defined as the killing of a human being willfully, premeditatedly and with malice aforethought, but without deliberation.” See Section 559.020, RSMo 1959, V.A.M.S. By way of further definition, in State v. Williams, Mo., 323 S.W.2d 811, 813 [5-8], it was said: “ ‘Malice,’ however, ‘does not mean spite or ill will, but the intentional doing of a wrongful act without just cause or excuse.’ ”

From the evidence in this case the jury could reasonably find that after the verbal altercations between deceased and defendant, the defendant went to his closet where he kept the shotgun, got it and brought it back with him to the divan. The jury could find that when deceased started to leave the apartment he attempted to make peace with defendant and that the defendant thereupon willfully and with malice aforethought, without provocation, just cause or excuse, but with premeditation, shot the deceased. See State v. Richardson, Mo., 321 S.W.2d 423. The state’s case did not fail for want of proof, and the trial court did not err in refusing to direct a judgment of acquittal. This point is ruled against defendant.

The following quoted assignments of error preserve nothing for our review under the cited cases below in that they fail to set forth in detail and with particularity the specific grounds or causes for the motion. Supreme Court Rule 27.20(a), V.A. M.R. “1. The verdict was the result of passion and prejudice,” State v. McMillian, Mo., 338 S.W.2d 838, 845 [9]; “2. The verdict was against the greater weight of the creditible (sic) testimony and evidence.” State v. Butler, Mo., 353 S.W.2d 698 [2]; “3. The Court erred in giving each and every instruction offered by the State.” State v. Ivory, Mo., 327 S.W.2d 870, 871 [2] ; “16. That the verdict of the jury was contrary to the law and evidence in the case.” State v. Ivory, supra, at p. 871 [1].

We pass on to other properly raised and preserved assignments of error.

The information in this case charges that defendant did “unlawfully, wil-fully, feloniously, premeditatedly and deliberately and of his malice aforethought, make an assault in and upon one Clarence Steele with a dangerous and deadly weapon, to-wit: a .16 gauge shotgun, loaded with metal pellets, then and there inflicting upon the said Clarence Steele a mortal wound, * * Defendant complains of the trial court’s action in giving Instructions Nos. 3 and 4, upon the offenses of murder in the second degree and manslaughter, in that both submitted the fact that the shotgun was loaded with “gunpowder and metal pellets” when the information failed so to charge the defendant therewith. These complaints are frivolous and are without merit. Defendant admitted he fired the shotgun. The jury could infer that it was loaded with gunpowder, and use its common knowledge and experience that gunpowder is necessary to the firing of such a weapon. These assignments (Nos. 4 and 5) are ruled against defendant. Defendant also assigns as error this same submission in the first degree murder instruction No. 1. As indicated above, the inclusion of the word “gunpowder” is not error, but even if it were defendant may not complain inasmuch as he was convicted of second degree murder. See State v. Lewis, 248 Mo. 498, 154 S.W. 716, 719 [1]; State v. Riddle, 179 Mo. 287, 78 S.W. 606, 609. Assignment No. 6 is likewise ruled against defendant.

By assignment of error No. 7 in his motion for new trial defendant says the trial court erred in failing and refusing to discharge the jury at defendant’s request by reason of the claimed highly prejudicial remarks by counsel for the state in his opening statement that defendant was on trial for the “unique crime of murder” and that “defendant committed a crime.” Reference to the transcript reveals that there was never any such request or any objection whatsoever to the opening statement. Nothing is preserved by this assignment which is raised for the first time in the motion for new trial. The trial court was never given any opportunity during the trial to correct the alleged error by instructing the jury. State v. Sykes, Mo., 372 S.W.2d 24, 27 [6-8], Assignment of error No. 7 is overruled.

Assignment of error No. 8 is that “the State failed to prove beyond a reasonable doubt the defendant’s guilt”, and the same being without merit, it is overruled. The submissibility of the state’s case is above discussed and ruled. It was for the jury to determine under all of the evidence the defendant’s guilt. State v. Spraggins, Mo., 368 S.W.2d 407, 410 [3-6].

Defendant next says, by his assignment No. 9, that the court erred in permitting the state’s witnesses to draw diagrams and use a blackboard. No objection to this procedure was made at the time it was being done, other than an objection to the state’s attorney placing a ring around a circle on the diagram to add emphasis, whereupon the court instructed the prosecuting attorney to remove the ring, which was done. No error is preserved. Nonetheless, such diagrams (here made of the apartment rooms and hallway where the shooting occurred) aid the jury in its understanding of testimony and its determination of all the facts surrounding the occurrence. State v. Brooks, Mo., 159 S.W.2d 646, 647; 98 C.J.S. Witnesses § 327, p. 28. Assignment No. 9 is ruled against defendant.

Assignment No. 10 sets forth that “the testimony and evidence of the witness Walker was (if no probative value for the reason that it was contradictory, speculative and conjectural.” While there were discrepancies in some details given in evidence by the testimony of witness Walker, the central theme of it was that defendant “up and shot” deceased without provocation. The credibility of all of his testimony, including impeaching evidence, was for the jury. State v. Tompkins, Mo., 277 S.W.2d 587, 590 [1]; State v. Jones, Mo., 358 S.W.2d 782, 784 [4], Assignment No. 12 relates also to the testimony of Walker in that defendant says witness Walker disqualified himself as a witness when he stated, “I don’t know what happened but I do know how it happened.” No objection was made nor was there any motion to strike the testimony. However, a reading of the witness’ testimony reveals that he actually said, “Well, I know what happened but I don’t know why it happened; no cause for it to my knowing; it happened before they got there I guess.” After this was repeated by the Court Reporter, the witness testified, “No, I said before they come home; they hadn’t been home but a few minutes, when this happened.” A fair interpretation of this testimony is that something unknown to the witness happened between defendant and deceased prior to the time they came home which caused the verbal incident, and the witness’ testimony related only to what he knew as to how the shooting occurred. We are at loss to ascertain any error with respect to this ' testimony. Both Assignments Nos. 10 and 12 are overruled.

In his assignment No. 11, defendant complains about the admission of photographs, State’s Exhibits 1, 2, 3, 4 and 5, which are of the apartment where the shooting occurred. The first three exhibits were admitted without objection, the last two over the objection of defendant “that it has not been established at this time that there has been no movement or change of the furniture or other items in the room from the time that the occurrence took place up to the time of the photographs being made.” The identifying witness stated the photographs were made by him on September 18, 1961, soon after the reported homicide, and that they fairly represent the premises at that time. These exhibits were admissible in evidence. State v. Brown, Mo., 312 S.W.2d 818, 822 [3-7]. Assignment No. 11 is overruled.

Assignment No. 13 is that the court erred in refusing to sustain defendant’s motion for judgment of acquittal made at the close of the state’s case. Defendant thereafter testified in his own behalf, and thereby waived any claim of errors. Also, we have discussed the submissibility of the state’s case under defendant’s assignment No. 14. Assignment No. 13 is overruled.

Defendant testified that there was a fourth person, one Felix Hardin, present at the time of the shooting. In rebuttal, the state called certain police officers who testified that they had never before heard of Felix Hardin. Defendant, in his assignment No. 15, contends that the state did not by these witnesses offer any rebuttal testimony. It is obvious that, in view of the defendant’s testimony that Hardin was present, this was proper rebuttal testimony. Assignment No. 15 is overruled.

The last assignment of error, No. 17, contains defendant’s assertion that “the verdict was void because the attorney for the State rendered void the instruction of the Court as to ‘Second Degree Murder’ by stating to the jury that this was ‘Murder in the First’ and if anything else it is self-defense.” The court properly instructed as to first degree murder as it djd on the issue of self-defense. The argument was within the evidence and permissible inferences deducible therefrom, and was within the law as declared by the court in its instructions. Furthermore, no objection was made by defendant to this argument. For these reasons, Assignment No. 17 is overruled.

We have examined the record pursuant to our discretionary authority under Supreme Court Rule 27.20(c), and we find no error therein. The information is sufficient to apprise defendant of the offense for which he was tried. He was duly arraigned and entered his plea of not guilty. Defendant was informed of the verdict of the jury, which was in proper form, allocution was granted and the judgment of conviction was entered. The sentence was in accordance with the verdict and was within the permissible limits for the offense of second degree murder. Defendant was accorded a fair trial, throughout which he was present in person and by counsel.

The judgment is affirmed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

The foregoing opinion by PRITCHARD, C., is adopted as the opinion of the Court.

All of the Judges concur.


author: BARRETT, Commissioner.

text:
    STATE of Missouri, Respondent, v. Robert BRYANT, Appellant.
    No. 49868.
    Supreme Court of Missouri, Division No. 2.
    Feb. 10, 1964.

      Don L. Schlapprizzi, St. Louis, for appellant.
    Thomas F. Eagleton, Atty. Gen., Paul N. Chitwood, Asst. Atty. Gen., Jefferson City, for respondent.
   BARRETT, Commissioner.

Robert Bryant has been found guilty of an assault with malice, in so far as material here an offense defined in this language “(e)very person who shall, on purpose of malice aforethought, shoot at * * * another with a deadly weapon * * * with intent to kill * * * shall be punished by imprisonment in the penitentiary not less than two years.” V.A.M.S. § 559.180.

These were the facts and circumstances as the jury could and did find them from the state’s evidence. Robert and Ruby Bell lived in concubina ge in, a basement apartment at 3625 Cozzens Street. On May 20, 1961, after spending the morning at her mother’s and next door with neighbors, Ruby returned to the apartment in the evening “Not drunk, I’d just say high.” Robert came in some time later but Ruby does not remember what happened until after she regained consciousness in the hospital. She was admitted to the hospital however with a wound in the back of her head and after surgery has a metal plate in her head. At 11:25 patrolman Hill was “walking west on Cozzens at 3610 Cozzens when this man Robert Bryant walks up to me and pulls a pistol out of his right front trousers pocket and hands it to me, and tells me that he just killed his wife, and he led me to the basement at 3625 Cozzens and pointed to the woman laying on the bed with a hole in her head. She was bleeding through the hole and he said that was her.” The gun was loaded and there was one discharged shell still in the chamber. On the way to the police station, and after he was under arrest, Robert said to Hill “she was nagging him and he shot her, that he just got tired of the nagging so he shot her.” Hill testified that at the station Robert said “that he had been drinking a small amount, about a third of a pint of wine, I believe he said it was, and that when he was trying to go to bed that Ruby Bell was nagging him and he got tired of the nagging and he went and got the pistol out of the dresser drawer and walked up about three feet away from her and shot her.” Another policeman testified that Robert “stated that he shot Mrs. Bell after she had been nagging and arguing with him. He said he told her to leave and she wouldn’t leave as he told her to.” Still another police officer testified that “He stated she had been coming home intoxicated, drunk, and nagging him and he just got fed up with it. * * * He said she came home and they became involved in a small argument about her drinking and he told her to get out of the house and not come back and that she wouldn’t leave, and he walked over and grabbed the pistol from the dresser.”

In these circumstances 't was appropriate to charge the appellant, adapting the language of the statute, with an assault with malice (V.A.M.S. § 559.180) which also by specific statute (V.A.M.S. §§ 556.220, 556.230) includes the lesser offense of an assault without malice, V.A.M.S. § 559.190. State v. Finnell (Mo.), 280 S.W.2d 110; State v. Dildine, 330 Mo. 756, 51 S.W.2d 1. And the court hypothesized and submitted to the jury in separate instructions the appellant’s guilt under both statutes, thus giving the jury the opportunity if it found the lesser included offense to affix a lesser punishment. The jury however found him guilty of the greater offense of an assault with malice and the evidence supports that finding. State v. Finnell, supra; State v. Bongard, 330 Mo. 805, 51 S.W.2d 84.

Robert denied the statements attributed to him by the officers, instead, “I says she got shot.” He said that he had “No intention or reason to use it (the gun) on her.” His version of the shooting was that Ruby came in “all full of that drink,” talking about killing her mother. He said that he was going to remove his gun from a dresser drawer and put it in a foot locker and this-is what he said happened: “Well, I reached and grabbed the gun she started and ran into it or something, all I know the gun went off, I was so nervous, and she fell down and I called to her and when I put her on the bed I saw she was shot, and I tried to call the police but I was just too nervous and I went to that corner for the officer.” Upon this testimony, presumably, the court gave this instruction:

“The Court instructs the Jury that a defense in this case is that even if the Defendant did shoot Ruby Bell, that he did so unintentionally, or as a result of a mere accident or misadventure. In this connection you are instructed that the Defendant is not required to prove that the shooting of Ruby Bell resulted from an accident, but the burden of proof is upon the State to show that it was not caused by an accident and that such shooting was intentionally done by the Defendant with the intent of shooting Ruby Bell, and the State must make this proof beyond a reasonable doubt. Unless the State has made this proof, then you should acquit the Defendant.”

It is now argued on his behalf that because of the phrase “intent of shooting” rather than the more appropriate “intent to kill” the instruction is prejudicially erroneous. It is said that the instruction has the effect of charging the jury that the state’s only burden was to prove that the “shooting was done ‘with intent to shoot’ ” when the essential element of the greater offense is “intent to kill.” Upon oral argument appellant’s counsel pressed the argument that this particular phraseology made the instruction conflict with instruction one which placed upon the state the burden of proving that he “made such assault with the intent then and there, on purpose, and of his malice aforethought, feloniously to kill Ruby Bell.” Instruction one, incidentally,, concluded by defining the words “wilfully,” “on purpose,” “malice aforethought” and “feloniously.”

It is not necessary here to define “malice” as employed in the statute (State v. Martin, 342 Mo. 1089, 119 S.W.2d 298) or even to consider whether the appellant’s version of the shooting required an instruction on accidental shooting. Neither is it necessary to consider whether all the instructions may be-read as a whole and harmonized. The instruction admittedly refers to and defines the defense of “accident,” it first tells the jury that the burden is upon the state to prove that such shooting was “intentional,” which, under this statute, characterizes “malice” and means “an unlawful act intentionally done and determined upon before it was executed.” State v. Hagerman (Mo.), 244 S.W.2d 49, 52. Or to quote precisely in context all of the applicable language “the burden is upon the State to show that it was not caused by an accident and that such shooting was intentionally done by the defendant with the intent of shooting Ruby Bell.’ The italicized language in this context refers to and means “intentionally * * * with the intent of shooting Ruby Bell,” that is, as the instruction could have said plainly, immediately following the phrase objected to, “not by accident.” So read in this context the instruction does not conflict with instruction one and is not confusing or misleading and therefore prejudicially erroneous.

The other point urged in the defendant’s behalf is that the 18 years’ imprisonment imposed by the jury “was cruel and unusual punishment resulting from prejudicial and inflammatory evidence adduced by the State” and that the court abused its discretion by imposing a 14 years’ sentence which also is “cruel and unusual punishment.” The evidence pointed to as inflammatory, although not objected to when admitted, was the testimony as to Ruby’s two hospitalizations, the nature of the wound in her head, the operation and insertion of the metal plate. Contrary to the appellant’s assertion the nature and character of Ruby’s wound was relevant and “permissible for the purpose of showing that the assault was made with intent to kill, and some instrument used which was adequate for the accomplishment of the purpose intended.” State v. Spaugh, 199 Mo. 147, 150, 97 S.W. 901; State v. Allen (Mo.), 343 S.W.2d 63, 67. The fact that other assaults, some of them perhaps more vicious, were punished by sentences of only two years’ imprisonment (State v. Spaugh, supra; State v. Finnell, supra) does not establish that the sentence, as reduced by the court, was cruel and unusual punishment or that the court abused its discretion in not further reducing the sentence. The sentence could have been much greater, 14 years’ imprisonment is within the limits fixed by the statute, “not less than two years” (V.A.M.S. § 559.180), and in other cases it has been held that sentences of 20 and 25 years were not cruel and unusual punishment and that there was no abuse of discretion in the courts’ refusal to reduce the sentences. State v. Bongard, supra; State v. Allen, supra; State v. Stucker, 352 Mo. 1056, 180 S.W.2d 719.

In the trial of his case the appellant was represented by the public defender and upon this appeal he has been represented by most capable and industrious court-appointed counsel. In addition to what counsel has done in safeguarding his rights, the appellant, independently of counsel, took certain steps in the trial court and has filed a brief in this court. After the conclusion of the trial, after verdict, after a motion for new trial had been filed and overruled, and after allocution, judgment and sentence, the appellant, being then in custody since he did not give bond, filed “under the collateral provisions” of Rule 27.26, V.A.M.R. a “Motion to Vacate Unlawful Sentence” which the trial court overruled. In this unusual manner the appellant attempted to raise several matters which have been disposed of, to wit, the sufficiency of the information and whether the offense was appropriately “laid” under § 559.180 as well as whether the evidence supports the verdict and judgment. In addition, the appellant sets forth what he says were the facts as to his arrest and detention for more than twenty hours and being “held” for five days “incommunicado” all of which he says was illegal and violated due process. Aside from the fact that there is no claim here of a coerced confession, there is an orderly procedure prior to and during trial by which to raise any problems arising out of an allegedly illegal arrest and detention. There is no explanation for the failure to employ the general rules and more importantly, perhaps, it is not made to appear just how this issue affects either the merits of the case or the appellant’s right to a fair trial. With the record in this posture these additional matters urged by the appellant are not valid grounds or reasons for collateral attack upon the judgment or for invoking Rule 27.26 and therefore the appellant’s motion was properly overruled.

Since, as indicated, the briefed assignments of error are without merit and there is no error as to those matters upon the record before the court (Sup.Ct. Rule 28.02), the judgment is affirmed.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM.

The foregoing opinion by BARRETT, C., is adopted as the opinion of the court.

All of the Judges concur.


author: WELBORN, Commissioner.

text:
    STATE of Missouri, Respondent, v. Charles Raymond BROWN, Appellant.
    No. 49908.
    Supreme Court of Missouri, Division No. 1.
    Feb. 10, 1964.
    Charles Raymond Brown, pro se.
    Thomas F. Eagleton, Atty. Gen., George W. Draper, II, Asst. Atty. Gen., Jefferson City, for respondent.
   WELBORN, Commissioner.

By a single count information (Section 560.110, RSMo, V.A.M.S.) filed in the Jackson County Circuit Court, appellant Charles Raymond Brown was charged under the Habitual Criminal Act (Section 556.280; RSMo, V.A.M.S.) with burglary in the second degree (Section 560.070, RSMo, V.A. M.S.) and stealing (Section 560.156, RSMo, V.A.M.S.) in connection therewith. A jury found him guilty of both burglary and stealing. The trial judge, under Section 556.280, supra, found that the appellant had previously been convicted of a felony and fixed appellant’s punishment at three years’ imprisonment on the burglary charge and two years on the stealing, the sentences to run consecutively (Section 560.110, supra). After appellant’s motion for new trial had been overruled, he appealed to this court. Appellant was represented on the trial by court-appointed counsel. No brief has been filed in this court on behalf of appellant. We, therefore, examine on this appeal, the assignments of error presented in appellant’s motion for new trial, as well as matters of record specified by Supreme Court Rule 28.02.

The state’s evidence at the trial showed that, on April 21, 1962, Dorothy Marie Thompson resided in one of the 48 apartments in a building located at 2718 Linwood in Kansas City. When she left for work on the morning of April 21, the Saturday before Easter, she locked her apartment.

At approximately 11:45 P.M., on the evening in question, Steward Wilson, an assistant to the manager of the apartment building, was returning to the building. As he reached an entrance to the building, he met two men coming down the steps from the entrance. There was a light over the entrance and a street light nearby. Wilson noticed that one of the men was carrying a gray fur stole with which he endeavored to conceal his face. The other was carrying a box. Because he was suspicious of the activity of the men, Wilson called the Kansas City Police Department and a police car was dispatched to the apartment building.

Wilson gave the policemen, Officers Fetters and Johnston, a description of the men. Fetters recognized the descriptions as fitting those of two persons he had seen in the vicinity on his way to answer the call. He and Officer Johnston drove to 31st and Montgall Streets where they saw, in front of the Log Cabin Tavern, the two men who fitted the descriptions Wilson gave. The tavern was approximately 2Yz blocks from the apartment building and 2 blocks from where the officers had previously observed the two men. The officers took the men into custody and returned with them to the apartment house. There, according to Officer Fetters, Wilson identified the two as the two men whom he had seen earlier. One of the men was the appellant and the other a man named Patton. Patton was wearing a bright red jacket or shirt at the time. This attire was noticed by Wilson and Officer Fetters recalled that one of the men whom he saw had been so attired.

At approximately 12:30 A.M., on the 22nd, Mrs. Thompson returned to her apartment. The front door was open and all of her clothes had been thrown on the floor. Examination of the premises showed that property of Mrs. Thompson’s which had been in the apartment was missing. The missing items included an imitation mink stole, a black Persian lamb stole, a portable radio, 112 phonograph albums, a record player, a sweater and an electric razor.

Officer Fetters was notified that Mrs. Thompson’s apartment had been entered. He returned to the building and examined her apartment, finding that the east kitchen door had been pried open.

Officer Fetters took appellant and Patton to the police station where appellant was interrogated. He denied that he had been at the apartment, claiming that he had been at the Log Cabin Tavern.

At approximately 5:00 A.M., on April 22, James Colston, who resided at 3121 Chestnut Street, observed a pile of clothing, a radio, a record player and record albums in the back yard at his residence, less than ½ block from 2718 Linwood. He notified police who took the articles into custody. Mrs. Thompson identified them as articles which had been taken from her apartment.

The defendant’s case consisted of the testimony of two witnesses, his sister and a friend of his sister. Both testified that appellant and Patton were with them inside the Log Cabin Tavern from 10:30 until 12:00 midnight on the evening in question.

On the basis of evidence to the foregoing effect, the jury found defendant guilty of burglary in the second degree and stealing. The trial court found that defendant had previously been convicted of burglary in the second degree in the Jackson County Circuit Court and imposed the sentence previously referred to.

Appellant’s motion for new trial sets out the following grounds for new trial:

“1. Because the verdict and judgment of this Court was against the greater weight of the credible evidence in the case.
“2. Because the verdict and judgment of this Court was against the law applicable to the case.
“3. Because the verdict and judgment of this Court was erroneous, being based primarily on ‘circumstantial evidence’ and ‘hearsay testimony’ of the police officers and witnesses produced by the plaintiff.
“4. Because the Court erred in overruling defendant’s Motion for a Directed Judgment of Acquittal based upon certain objections then read into the record to the effect that the plaintiff had not established the ‘res gestae’, said objections benefiting the defendant, and being made upon the close of plaintiff’s case.
“5. Because the Court erred in permitting Counsel for plaintiff to persist in asking leading questions on direct examination of all his witnesses, over the proper objections of counsel for defendant.”

Considering, as we do, these grounds for new trial as specifications of error on the appeal here, we conclude that specifications 1 and 2 preserve nothing for review by this court. State v. Andrews, Mo.Sup., 371 S.W.2d 324, 327(4); State v. Washington, Mo.Sup., 364 S.W.2d 572, 574(2); State v. Hadley, Mo.Sup., 364 S.W.2d 514, 516(1).

As to specification 3, “[i]t is well established that circumstantial evidence is sufficient to support a conviction * * State v. Giden, Mo.Sup., 369 S.W.2d 212, 214(4); State v. Durham, Mo.Sup., 367 S.W.2d 619, 621(1). No specification is made as to the evidence alleged to be hearsay. Examination of the transcript reveals several objections at the trial on the part of appellant’s counsel to questions tending to elicit hearsay testimony, all of which were sustained. Therefore, we find no basis in this assignment for error on the part of the trial court.

Turning to specification 4, we fail to find in the transcript on this appeal any motion on behalf of appellant for a directed verdict at the close of the state’s case. Even had there been such, the production by defendant of evidence would have waived any error in overruling such motion. State v. Doepke, Mo.Sup., 361 S.W.2d 689, 691(2).

Considering these four assignments “in the totality of their effect” as challenging “the substantiality of the evidence,” (State v. Edmonds, Mo.Sup., 347 S.W.2d 158, 160(2)), the recital of the evidence shows clearly the sufficiency of the evidence to sustain the verdict. Wilson identified defendant as one of two men whom he saw leaving the building in which Mrs. Thompson’s apartment was located. One of the men was carrying items of women’s clothing, including a gray fur stole. Wilson stated that appellant was carrying a box. Mrs. Thompson found that her apartment had been forcibly entered and that, among the missing items of her belongings, were a gray fur stole, phonograph records and a radio. The stole and other items removed from her apartment were found nearby the next morning. The appellant was found in the vicinity shortly after the police had been notified of a possible burglary. Certainly, the evidence warranted the jury’s disregarding appellant’s alibi testimony and concluding that appellant was guilty as charged.

As for the appellant’s fifth assignment, the transcript shows only one instance in which appellant objected to leading questions and that objection was sustained. We find no basis of error in this allegation.

We have examined the matters of record. The information is in conventional form and sufficient. Appellant was arraigned and pleaded not guilty. He was present at the trial. The verdict is in proper form and responsive to the charge. The appellant was accorded allocution and judgment and sentence duly pronounced and entered.

Finding no error in the proceedings in the trial court, the judgment is affirmed.

COIL and HOUSER, CC., concur.

PER CURIAM.

The foregoing opinion by WELBORN, C., is adopted as the opinion of the Court.

All of the Judges concur.


text:
    Lee W. KIRTLEY and Hammon Baking Company, Plaintiffs-Respondents, v. Joseph Nicholas IREY, Defendant-Appellant.
    No. 49929.
    Supreme Court of Missouri, Division No. 2.
    Jan. 13, 1964.
    Motion for Rehearing or to Transfer to Court En Banc Denied Feb. 10, 1964.
    Keyes, Bushman & Hearne, John L. Hearne, Jefferson City, for appellant.
    Charles H. Howard, Jefferson City, and Wesner, Wesner & Meyer, Robert L. Wes-ner, Sedalia, for respondents.
   BARRETT, Commissioner.

On September 16, 1958, Lee W. Kirtley, sales manager of Hammon Baking Company, was driving a 1957 Ford station wagon when it was involved in a collision with a 1950 Chevrolet automobile driven by Joseph N. Irey. Kirtley was en route to Latham from California on Route E traveling south on the blacktop highway, and Irey and his wife, who lived near Latham were traveling north on their way to Tipton and the centennial celebration of the Butter-field Overland Mail. Kirtley and Ham-mon Baking Company instituted this action against Irey to recover $35,000 damages for his personal injuries and $900 for injury to the station wagon. When the case was first tried on the petition of the plaintiffs and Irey’s counterclaim a jury returned a verdict for damages in favor of both parties on their respectively submitted claims, whereupon the court declared a mistrial. Upon this trial of the plaintiffs’ claims, without Irey’s counterclaim, a jury returned a verdict in favor of the defendant. The plaintiffs’ motion for a new trial was sustained on the ground that “the court committed prejudicial error by giving, submitting and reading to the jury Instruction No. 8.” The defendant has appealed and contends that instruction 8 was not prejudicially erroneous and in any event that plaintiffs are now precluded from maintaining this action.

As a matter of fact the vehicles collided just south of a one-way bridge over the Moreau River. It is in a valley and motorists approaching “out of the hills” from both north and south have a clear view of the bridge and of approaching traffic. The bridge is 110 feet 7 inches long and at both approaches there is an earthen ramp. Kirt-ley says, incidentally, that as' he entered the valley at a speed of 35 miles an hour he saw another vehicle, Irey’s beyond the “flats” traveling north, “looked like it was far enough away that I didn’t (sic) have any trouble getting by the bridge.” As he drove up the ramp he reduced the speed of the station wagon to 20 or 25 miles an hour and again saw the top of Irey’s automobile “on the fár side and at that time it looked like it pulled over to let me go by and then all of a sudden he stepped on the gas and came right out and there was just no place for me to go.” Two-thirds or three-fourths of the way he “hit” his brakes but even at a reduced speed of 10 to 15 miles an hour the station wagon collided with the automobile eleven feet south of the bridge and at a point where the blacktop highway was also “definitely one-way.”

There is virtually no conflict or dispute as to these facts, the entire controversy, as far as instruction 8 is concerned, hinges around the fact, admitted by all, that there is one point at both ends of the bridge as vehicles ascend the ramps and approach the bridge that automobiles from the opposite directions cannot be seen. And it is upon this single fact that Irey relies and bases his hypothesis of Kirtley’s contributory negligence. In essence he contends that by reason of this one point from which vehicles traveling in opposite directions cannot be seen, Kirtley was under a duty to sound his horn and thus signal that he was proceeding across the bridge and failing to do so was guilty of contributory negligence. Since this is the crux of the case it is not necessary to consider the general rules relating to the duty to timely signal. And for the purposes of this opinion it is assumed that instruction 8 is correct abstractly. The precise problem is whether under any view of the evidence favorable to Irey and the jury’s verdict there is an evidentiary basis for the instruction because if there is no testimonial support for a verdict-directing submission, here contributory negligence, the instruction is confusing and misleading and therefore prejudicially erroneous. Huger v. Doerr, (Mo.App.) 170 S.W.2d 689.

The Ireys had lived in the Latham neighborhood for over 30 years and “Nick” Irey was quite familiar with the road and the bridge. As he “dropped down the hill” into the “first flat” at a speed of 20 to 25 miles an hour he came to a “one-lane bridge” sign. That road sign was 101 paces, around 300 feet, south of the next marker, a “load limit seven tons” sign, and Irey said that the látter sign was 37 paces, approximately 93 feet, from the end of the bridge. Thus the distance from the end of the bridge to the “one lane” sign was about 393 feet. Irey says that he did not see a motor vehicle approaching from the north, the other side of the bridge over 500 feet away, although he and Mrs. Irey were talking as they rode across the valley, and he said, “Oh, I don’t know as she said be careful. She is always saying something like that.” But he said, “Well, I rolled on up towards the next bridge sign, up to where the load sign was, by that time I seen this car coming, just the top of it, on the other side of the bridge. Well I applied my brakes and when I applied my brakes the back end of my car swerved around, I let off of them, straightened up and this car was still coming and I slapped on my brakes, I froze.” His Chevrolet “slid” and that was the last he remembered except that his automobile was stopped when the vehicles collided. He had said, however, that Kirtley’s station wagon was “three or four (car) lengths on the other side of the bridge” when he “caught the glimpse of the top of the car.” He was unable to accurately estimate the speed of Kirtley’s vehicle but said, “It was coming pretty fast the way it looked to me, that is why I was braking as hard as I was.” He was certain that Kirtley was traveling “quite a little faster than I was” because “it came clear on across that bridge and up the fill and across the bridge and got me on the other side and I never was on the bridge.” A neighbor, 76, who lived north of the Moreau Bridge “a little over a quarter” (who had not driven a “machine” for the past 12 or 14 years and before that said, “I just drove a little, let the boys do the driving, I owned the car but they done the driving”) remembered seeing Kirtley’s station wagon “pass like a streak of fire,” said “He was going 65 or 75. If I was going to register it I would register it higher than that.” Irey testified that when he was just south of the bridge he could not see the station wagon and he said that he did not hear “a horn sound at any time.”

In these circumstances and before reaching the ultimate problem these collaterally relevant factors should be noted: Kirtley was traveling “quite a little faster” and reached or approached the bridge ahead of Irey. And while there may be no “right or wrong side” to a one-way bridge, Kirtley having reached the bridge ahead of Irey, no other factors intervening, had the superior right to proceed. Annotation 47 A.L.R.2d 142, 167 ; 7 Am.Jur.2d, Automobiles, Sec. 205, p. 756; 8 Am.Jur.2d, Automobiles, Sec. 759, p. 316; 2 Blashfield, Cyclopedia of Automobile Law, Sec. 904, p. 75. Aside from these factors the parties have cited several cases relating to the purpose of signals and the duty to signal although, according to the appellant, they “have found no cases involving a raised one-lane bridge that obstructs visibility.” But it is not necessary here to review the general rules, it is sufficient to say that there is no fixed, inflexible rule as to signals, the duties are reciprocal, and the duty and efficacy of signals depends on the circumstances. Miller v. Wilson, (Mo.App.) 288 S.W. 997; Gillis v. Singer, (Mo.App.) 86 S.W.2d 352; Greer v. St. Louis Public Service Co., (Mo.App.) 87 S.W.2d 240; McKinney v. Bissel, (Mo.App.) 263 S.W. 533.

In general, as to the negligence of a motorist leaving a narrow bridge, the inquiry has usually turned on speed or whether he was on the wrong side of the road. As to motorists approaching a bridge the inquiry has usually been whether they “should have controlled their vehicles so as to give a clear passage to the other vehicle which had preempted the passageway.” 47 A.L.R.2d 1, c. 151, 154. It may be that there is no precisely similar set of circumstances but except for the fact that on the approaches to the bridge there was one point at which vehicles from the opposite direction could not be seen Bach v. Ludwig, (Mo.App) 109 S.W.2d 724, has many points of similarity and an applicable lesson. There the collision was at night as the vehicles approached a narrow culvert. In holding that there was no evidentiary basis for the guest plaintiff’s instruction submitting that defendants “failed to sound any horn, signal or warning of each other’s approach or intention to cross a bridge or culvert too narrow for both to cross at once,” the court had this to say:

“The evidence shows without dispute that each defendant saw the other’s headlights a considerable distance away from the bridge as they approached it. Therefore, the failure to give warning could not have been the proximate cause of plaintiff’s injury. A warning sounded by each would not have made them any more aware of each other’s presence and movements in approaching the culvert than they were by seeing each other as they approached it. In view of such evidence, it is clear that the failure to give warning had no causal connection with plaintiff’s injuries, and it was error for the court to authorize the jury to find against defendants on that ground.”

There are occasions when an occupant or operator of a motor vehicle may see another vehicle approaching but is nevertheless entitled to a warning; as in the case of a passenger in a taxicab injured when a bus failed to signal and struck a partially opened door, or in an instance when a signal might warn that a speeding automobile would proceed. Martin v. St. Louis Public Service Co., (Mo.App.), 368 S.W.2d 498; Steigleder v. Lonsdale (Mo.App.) 253 S.W. 487. It is not necessary here to further distinguish cases or to carefully spell out all the distances and analyze. When Irey, traveling at 20 to 25 miles an hour, was approximately 93 feet from the bridge, with which he was indeed most familiar, he saw Kirtley’s station wagon three or four lengths beyond the bridge (93 feet, plus the length of the bridge 110 feet 7 inches, plus three car lengths) approaching at a “faster speed” than his own speed. In these circumstances it is not apparent just what additional information and knowledge, after the station wagon reached the one point in the highway that approaching vehicles could not be seen, a signal from Kirtley’s horn would then convey. All the circumstances considered, there was no evidenti-ary basis for instruction 8 and for that reason the court properly granted a new trial. In addition to the force of Bach v. Ludwig, other persuasive cases are Feeherty v. Sullivan, (Mo.App.) 129 S.W.2d 926; Adair v. Cloud, (Mo.) 354 S.W.2d 866 and Buck v. Kleinschmidt, 279 Ky. 569, 131 S.W.2d 714.

The second problem, whether the court erred in overruling the defendant’s motion for judgment on the pleadings and finally in striking a part of the defendant’s answer arose in these briefly noted circumstances. As stated, the plaintiffs Kirtley and Hammon Baking Company instituted this action against Irey to recover damages for personal injury to Kirtley and for injury to the bakery truck. Almost immediately the defendant Irey filed an answer and a counterclaim. The counterclaim has not been set forth in this record but it was certainly to recover damages for Irey’s personal injuries and perhaps for any loss he may have sustained by reason of his wife’s injuries. In any event, with the issues in this posture, a jury returned a verdict in favor of the plaintiffs for their losses and also a verdict for the defendant on his counterclaim. Because of the inconsistent verdict, no doubt, the trial court declared a mistrial with the result that the issues between the parties were restored to their former status. The public liability insurer of Hammon Baking Company and of course of its driver-manager, Kirtley, was the Auto Owners Mutual Insurance Company. Auto Owners also insured Ham-mon Baking Company’s liability under the workmen’s compensation law. Plaintiffs’ counsel in their action for damages also filed a claim for compensation benefits against Kirtley’s employer, the baking company, and in addition represented Auto Owners in defense of Irey’s counterclaim. Ultimately, Auto Owners, using other counsel, made a lump sum settlement of Kirtley’s compensation claim which together with medical benefits totaled $5,085.84. And as of course, by reason of the compensation law, Auto Owners, to the extent of its payments on behalf of the bakery, became sub-rogated to any claim for negligent injury Kirtley had against Irey. V.A.M.S. § 287.-150; Everard v. Woman’s Home Companion Reading Club, 234 Mo.App. 760, 122 S.W.2d 51; Pritt v. Terminal R. R. Ass’n., (Mo.) 251 S.W.2d 622, and see Annotations 106 A.L.R. 1040, 142 A.L.R. 170.

In this action plaintiffs’ counsel continue to represent Auto Owners in so far as its claim for subrogation is involved. Before this action was tried the second time, resulting in a jury verdict in favor of Irey, Auto Owners Mutual Insurance Company in its capacity as Hammon’s and Kirtley’s liability insurer and under the terms of its policy, but as to this phase of the case again employing other counsel and the defendant Irey represented by personal counsel other than the lawyers provided by his liability insurance carrier, settled Irey’s counterclaim and Mrs. Irey’s own claim for personal injuries for a total payment of $2,000. Mr. and Mrs. Irey executed a release and their personal lawyer and the lawyers representing Auto Owners entered into a stipulation dismissing the counterclaim with prejudice. In this connection there was a judgment entry of dismissal signed by the judge and that entry was prepared by plaintiffs’ personal counsel and Auto Owners counsel in the prosecution of its subrogation claim.

As stated, the facts relating to this problem have been abbreviated, but these circumstances were the basis, prior to this the second trial, of defendant’s motion for judgment on the pleadings and of its stricken answer. In summary it is the appellant’s position that “(b)y taking a general release from the defendant and entering into the compromise and settlement of the defendant’s counterclaim, and the stipulation for prejudicial dismissal thereof, the attorneys for plaintiffs’ insurer estopped and barred the plaintiffs from the further prosecution of this suit.” The difficulty with this contention is that, despite the complicated and ambiguous representation by counsel and the unusual if not conflicting position of Auto Owners Mutual Insurance Company, it stands uncontradicted by Kirtley’s counsel (neither Kirtley nor Ham-mon’s officers testified on this issue) that Kirtley was not a party to and had no personal knowledge of the settlement of Irey’s counterclaim. In this situation and state of the record the only knowledge Kirtley could have would be such as would necessarily be imputed to him by reason of his counsel’s knowledge and conduct. But, as indicated, as to the settlement of the counterclaim that too was handled by Auto Owners other counsel. Plaintiffs’ counsel testified, except for preparing the entry of dismissal after the event of the settlement, that he felt “there was a conflict at that point of time” and “we would withdraw without any fee to us.” He said that he was not consulted and did not take part in the settlement of the counterclaim.

By reason of the manner in which this matter has been handled there may be some complications, rights or obligations as between plaintiffs and their dual capacity insurer and its multiple representation. The plaintiff Kirtley knew, as a matter of law, when he made a lump sum settlement of his compensation claim that pro tanto his employer’s insurer was subrogated in that amount to any right of recovery he may have had against a negligent third party, but that fact and that relationship does not carry with it knowledge on his part that this same insurer would settle the defendant’s counterclaim and at the same time in the same litigation seek to recover the amount of the subrogation claim from the defendant Irey. In so far as the appellant’s claim of estoppel is concerned the case does not fall within the rule that the immediate parties to a compromise and settlement and a stipulation of dismissal of a claim or counterclaim with prejudice are “estopped to proceed further with their counterclaim.” England v. Yellow Transit Co., 240 Mo.App. 968, 225 S.W.2d 366, 369; Max v. Spaeth, (Mo.) 349 S.W.2d 1; Eberting v. Skinner, (Mo.App.) 364 S.W.2d 829; Farmer v. Arnold, (Mo.) 371 S.W.2d 265. The circumstances as they now appear upon this record do not fall within the proscrip-

tions suggested or implied in Faught v. Washam, (Mo.) 329 S.W.2d 588, 594-595; O’Hanlon Reports, Inc. v. Needles, (Mo.App.) 360 S.W.2d 382, and other cases and texts. In short, the circumstances of this record are governed by the rule that “a liability insurer’s settlement of a claim against the insured, made without the insured’s consent or against his protests of nonliability, and not thereafter ratified by him, will not ordinarily bar an action by the insured against the person receiving the settlement, on a claim arising out of the same state of facts.” Annotation 32 A.L.R. 2d 937, 938; Burnham v. Williams, 198 Mo.App. 18, 194 S.W. 751.

Therefore the judgment is affirmed and the cause remanded.

STOCKARD and PRITCHARD, CG, ■concur.

PER CURIAM.

The foregoing opinion by BARRETT, C., is adopted as the opinion of the court.

All of the Judges concur.


text:
    CONTINENTAL ELECTRIC COMPANY, Appellant, v. EBCO, INCORPORATED, Defendant, and Ford Motor Company, Respondent.
    No. 50087.
    Supreme Court of Missouri, Division No. 1.
    Jan. 13, 1964.
    Motion for Rehearing or to Transfer to Court En Banc Denied Feb. 10, 1964.

      Robert W. Cook, Kansas City, Linde, Thomson, Vandyke, Fairchild & Lang-worthy, Kansas City, of counsel, for appellant.
    Warren E. Slagle, Slagle & Bernard, Kansas City, for respondent.
   WELBORN, Commissioner.

This is an action by the appellant, Continental Electric Company, against Ebco, Incorporated, to recover for materials furnished by appellant to Ebco, a subcontractor on a project of the respondent, Ford Motor Company, for construction of buildings at Ford’s plant in Clay County, Missouri. The action also sought to enforce a material-man’s lien against the Ford plant property. Ebco defaulted on the cause of action against it. Upon trial, a jury returned its verdict in favor of the appellant on its claim of a lien against the Ford property. After the verdict, respondent filed a motion for judgment in accordance with its motion for directed verdict at the close of the case and an alternative motion for new trial. The trial court sustained the motion for judgment and also ordered that, in the event such judgment not be upheld, the motion for new trial should be considered sustained. Appellant appealed to the Kansas City Court of Appeals which reversed the judgment of the trial court and ordered judgment entered in accordance with the verdict (365 S.W.2d 746). On motion of respondent, alleging among other grounds that the decision of the Court of Appeals conflicted with controlling decisions of this court, the Court of Appeals transferred the cause to this court. We now have the matter before us as on original appeal. Civil Rule 84.05 (h), V.A.M.R.

One of the grounds specified by the trial court for sustaining respondent’s motion for judgment was that the trial court lacked jurisdiction of the cause of action to enforce the lien for the reason that, after the first summons had been issued against Ebco and returned unserved, appellant failed to request the issuance of an alias summons for a period in excess of six months after the original summons had been returned un-served. Respondent had raised this objection by its answer upon which the case was tried.

The facts relative to this issue are that appellant’s lien statement was filed in the office of the Clay County Circuit Clerk on December 23, 1959. This action against Ebco and Ford was filed in the Clay County Circuit Court on February 5, 1960, well within the 6-month limitation prescribed by Section 429.170 RSMo 1959, V.A.M.S. Summons issued on the same date. Ford was served shortly thereafter. The summons for Ebco showed an address in Kansas City and that summons was forwarded to the Sheriff of Jackson County on February 10, 1960. The Jackson County Sheriff attempted to serve Ebco at the address shown on the summons, which, according to the appellant, had been found in the Kansas City telephone directory. On February 10, the Jackson County Sheriff notified counsel for appellant that the office of Ebco at the address given was empty and locked and that the summons had not been served. A “non est” return was made and the summons returned to the Clay County Circuit Clerk who on February 11, 1960, advised appellant’s counsel of the “non est” return.

No further process for Ebco issued until October 10, 1960, after a pre-trial conference on October 7. On October 10, an alias summons issued at appellant’s request. It was served October 14, 1960, by the Jackson County Sheriff by delivery to the registered agent of Ebco, Inc., Mr. Charles Ferm, an attorney, at the registered office of Ebco, 1005 Grand Avenue, Kansas City. Mr. Ferm had been designated the registered agent and that address the registered office of Ebco in its articles of incorporation filed in the Jackson County Recorder’s office on October 10, 1958.

As the subcontractor, who purchased the materials for which the lien was sought, Ebco was a necessary party, to any action to enforce a materialman’s lien. Section 429.190, RSMo 1959, V.A.M.S. Hughes Bros. Paint & Hardware Co. v. Prewitt, 170 Mo.App. 594, 157 S.W. 120, 121. An action to enforce a lien must be commenced against all the necessary parties within the time prescribed by statute for instituting the suit after filing of the lien notice. Quigley v. William M. Rideout & Co. et al., Mo.App., 127 S.W.2d 37; Steinmann v. Strimple, 29 Mo.App. 478; Reis v. Taylor, Mo.App., 103 S.W.2d 892; Harrison v. Creason, 238 Mo.App. 118, 176 S.W.2d 849. The time now specified is six months (Section 429.170), having been extended from ninety days in 1959 (Laws of Mo.1959, S.C.S.S.B. 257 and 295).

Respondent’s position is that, under the cases of Mayne v. Jacob Michel Real Estate Co., 237 Mo.App. 952, 180 S.W.2d 809; St. Ferdinand Sewer District v. Turner, Mo.App., 208 S.W.2d 85, and Driscoll v. Konze, Mo.Sup., 322 S.W.2d 824, the delay by appellant for a period in excess of six months in obtaining the alias summons which was served on Ebco nullified the effect of the filing of the suit to prevent the expiration of the limitation period. Appellant’s response is that the requirements of the statute were satisfied when the suit was filed within the limitation period and that failure to serve summons within such period is not a bar to the action so long as the plaintiff did not request or participate in the delay of service. Appellant relies on City of St. Louis v. Miller, 235 Mo.App. 987, 145 S.W.2d 504; Henry Weis Cornice Co. v. J. B. Neevel & Sons et al., 187 Mo.App. 496, 174 S.W. 159; Hill-Behan Lumber Co. v. Sellers, Mo.App., 149 S.W.2d 465, and also cites Driscoll v. Konze, supra.

As above mentioned, Section 429.-170 requires that the action to enforce a lien be “commenced” within six months after the filing of the lien statement. In our practice, an action is commenced by the filing of a petition and the issuance of summons. Civil Rule 53.01, V.A.M.R. The original summons is to be issued by the clerk forthwith upon the filing of the petition. The plaintiff is not obliged to take any further steps for such purpose. However any additipnal summons issues only at the request of the plaintiff. Civil Rule 54.01, V.A.M.R.

In Mayne v. Jacob Michel Real Estate Company, supra, a petition on a claim for sewer taxes subject to the 5-year statute of limitations was filed on November 10, 1932. Summons issued on November 21, 1932, and was returned unexecuted on January 9, 1933. No other process issued until an alias summons issued on July 7, 1943, which was served on July 14, 1943. The defendants raised the defense of the statute of limitations and in sustaining their defense the court stated (180 S.W.2d 810) :

“In this case the petition was filed and a writ of summons was issued upon the filing of the petition. There is no question that this was the commencement of the suit within the meaning of the statute of limitations, but the fact that the suit was commenced prior to the running of the statute is not necessarily decisive. The question with which we are here concerned is as to whether or not there was such delay in the issuance of other process following the return of the original writ as to interrupt the continuity of the suit so that the running of the statute became a bar to the suit.”

The court forther stated (180 S.W.2d 812):

“The cases differ somewhat with respect to the course of reasoning adopted, but they all proceed upon the same underlying principle and arrive at the same result. They all manifest the same unwillingness to permit the period of limitation to be prolonged by the failure of the plaintiff to make diligent use of the means provided by law for obtaining jurisdiction of the defendant.”

The court concluded (180 S.W.2d 813):

“It is clear that the present suit is barred by limitation, and defendant’s instruction in the nature of a demurrer to the evidence was erroneously refused.”

St. Ferdinand Sewer Dist. v. Turner, supra, was also a suit to recover sewer taxes. Petition was filed on September 27, 1932. Summons issued on October 24, 1932 and was returned unexecuted on January 9, 1933. No further process issued. On September 23, 1946, motion to dismiss the action under the 5-year statute of limitations was sustained. In upholding this action, the St. Louis Court of Appeals stated (208 S.W.2d 88):

“We held in the Mayne case, under facts the same as in this case, that the statute of limitation was not tolled by the mere filing of the petition and issuance of a summons which was returned unexecuted, and thereafter the term of over five years elapsed without further process being issued. It is unnecessary to again review all of the authorities which were reviewed in that case. However, one case that was cited and quoted from, and which we think is a correct pronouncement of the law, was Clark v. Kellar, 3 Bush, Ky., 223, wherein the court said: ‘To prevent the statute of limitations from running, a suit must be brought and prosecuted in good faith; and, if the time constituting the bar is permitted to elapse between the suing out of one process until another, the mere bringing the suit will not prevent the statute from running, and is no legal reason why the bar-should be disallowed.’ ”

In Driscoll v. Konze, supra, a writ scire: facias issued on April 11, 1949, to revive a judgment which would have expired on April 18, 1949. Some time prior to July 27, 1949, the sheriff made a “not found” return .and on the latter date service by publication was ordered. The defendant not appearing, .a judgment of revivor was entered on October 29, 1949. Some time thereafter, defendant moved to quash the judgment of re-vivor on the grounds that the order of publication was void. The Supreme Court held the judgment void (296 S.W.2d 31), and its mandate was filed in the trial court on Janu•ary 21, 1957. On February 6, 1958, plaintiff 'secured an alias scire facias writ which issued and was served the next day. The defendant’s motion to quash the alias scire facias writ was sustained by the trial court and its judgment affirmed by this court. In the opinion, this court stated (322 S.W.2d 828):

“Although statutes of limitations are satisfied when a suit is commenced prior to the running of the statute by .filing a petition and having a summons issued thereon, there nevertheless may ‘.be such delay and lack of diligence in the issuance of other proper process as to cause a discontinuance of a properly •instituted action, and thus a period of limitations which expires in the meantime will be an effective bar to the ■continuation of the action. Mayne v. Jacob Michel Real Estate Co., 237 Mo.App. 952, 180 S.W.2d 809, 810 [1], and note particularly the statement by the court at page 812 summing up the underlying principle of several cases there reviewed, ‘They all manifest the same unwillingness to permit the period -.of limitation to be prolonged by the ■failure of the plaintiff to make diligent use of the means provided by law for obtaining jurisdiction of the defendant.’ ”

"The court further stated (322 S.W.2d 829):

“It seems clear and we hold that plaintiff’s delay for more than a year in applying for the alias writ worked a discontinuance of the existence of the 1939 judgment by limitation under all the circumstances disclosed by this record and that, consequently, the trial court correctly sustained defendant’s motion to quash. We think it is not possible to satisfactorily state even general standards by which it may be determined when and under what circumstances one’s lack of diligence to proceed in the issuance of process may amount to a discontinuance of the action or destroy the effectiveness of a pending proceeding. Each situation must depend upon all the circumstances in which the relevant facts appear.”

In discussing the quotation from Clark v. Kellar, 3 Bush, Ky., 223, which appears above in the quotation from St. Ferdinand Sewer Dist. and which was also quoted in the Mayne case, this court stated (322 S.W.2d 829):

“Even if the foregoing quotation is properly construed to mean that a statute of limitations will not run unless a period equal to the period provided in the limitation statute has elapsed between the time of issuing one process until the time another is issued, it is clear that the Mayne case did not adopt any such construction or rule but on the contrary held, as heretofore noted, that a period of limitation cannot be prolonged by the failure of a plaintiff to make diligent use of the means provided by law to obtain jurisdiction of the defendant.”

We are of the opinion that, under these cases relied upon by respondent, appellant’s unexcused neglect for a period in excess of the period of limitation to cause process to be issued which would confer upon the court jurisdiction of an essential party is fatal to the maintenance of the action to enforce the lien. If prompt determination of the lien claim is to be achieved, and such is the obvious purpose of the short limitation period, there can be no reason to accord to the party bringing the suit a period of time for obtaining process which exceeds the time within which he is required to sue. As pointed out in the Mayne and Driscoll cases, the plaintiff may not by such device extend the period of limitation on the cause of action. The effect of such delay is to cause the period of limitations to continue to run, despite the filing of the suit. The timeliness of the action in such case must be measured, at the earliest, by the time at which plaintiff seeks additional process. Insofar as Ebco is concerned, the situation is the same as if appellant had attempted to join them as a party on October 10. The lien would have terminated under such delay and Ford could have asserted such termination. Steinmann v. Strimple, supra. See Reis-Moran Lumber Co. v. Putney Roofing Co., Mo.App., 147 S.W.2d 172. The effect of the delay here is the same and Ford had the right to object to the lien on such grounds.

In Driscoll v. Konze, supra, the court pointed out that in some circumstances the plaintiff should be permitted to explain his delay in obtaining substitute process. However, there is no valid excuse for delay such as involved in this case. Eb-co was a Missouri corporation, required by law to maintain an office and agent for service of process. Sections 351.370-351.380, RSMo 1959, V.A.M.S. The appellant, until the matter was raised some eight months after the suit was filed, made no effort to take advantage of the statutes designed to facilitate service of process on corporations. Instead of seeking out the registered agent, the appellant merely took an address from the telephone directory. Under the General and Business Corporation Law, the name of the registered agent and the address of the registered office of Ebco were matters of public record, easily available to the appellant. When resort was finally had to service in such manner, it was promptly accomplished.

The appellant asserts that it did not obstruct or deliberately delay the service of process on Ebco. Of course, had appellant done that, the statute of limitations would have continued to run. Hill-Behan Lumber Co. v. Sellers, supra. However, it was the obligation of the appellant to see that an alias summons issued (Mayne v. Jacob Michel Real Estate Co., supra) and there can be no question that the appellant did not diligently carry out this obligation. Appellant further states that there was no discontinuance of the action because Ford had been served and the action proceeded without delay. However, the appellant was. obliged to institute its action not only against Ford but also against Ebco, and to continue the action against both. We cannot say that the failure to serve process on Ebco for a period of some eight months after the suit was instituted did not delay the eventual disposition of the cause of action. Ebco was served on October 14, 1960 after a pre-trial conference on October 7, 1960. Although the transcript here is silent on the status of the litigation at that time, it would be reasonable to assume that the cause was at issue as between the appellant and Ford at the time of the pre-trial conference. After Ebco had been served, a motion to dismiss-was filed by it on November 21, 1960V-This motion was overruled by the trial court on January 16, 1961. Whether or not Ebco-was given leave to plead thereafter does not-appear, but no further pleading was filed on. behalf of Ebco. In these circumstances, the: delay in serving Ebco must certainly have delayed the bringing of the cause to trial.

Although a case such as this must be ruled on its particular facts, we note that none of the cases relied upon by appellant involved a situation similar to that here presented. In City of St. Louis v. Miller, 235 Mo.App. 987, 145 S.W.2d 504, the question was whether or not failure to issue a writ of scire facias for renewal of a judgment within the 10-year period of limitation was fatal where the application for the writ had been filed within the period. Time of service of.' the writ was not the issue. The judgment, revival of which was sought, had been entered March 7, 1928. The petition for the writ was filed March 5, 1938. The writ issued March 8, 1938. The petition having been timely filed, failure of the writ to issue within the limitation period was not fatal. In Hill-Behan Lumber Co. v. Sellers, Mo.App., 149 S.W.2d 465, the court cited Miller in laying down the general rule that a suit is commenced when the petition is filed. In Hill-Behan, the lien was lost because plaintiff requested a delay in the service of process. In Henry Weis Cornice Co. v. J. B. Neevel & Sons et al., 187 Mo.App. 496, 174 S.W. 159, an entry of appearance, after the limitation period had expired, by the principal contractor in an action filed within such period was held sufficient to avoid the effect of the limitation statute. There is nothing to indicate the time within which the entry of appearance was made. Prompt entry of appearance in such situation would, however, be as effective as service after the limitation period had run.

We, therefore, conclude that the trial court properly ordered judgment for the respondent on the grounds that the lien was barred under Section 429.170 by reason of the delay on the part of appellant in obtaining process for service upon Ebco. In view of our conclusion in this regard, we need not inquire further into the other grounds cited by the trial court as a basis for its action on the motion for judgment or on the motion for new trial.

The respondent’s motion to dismiss the appeal in this court is overruled. The judgment of the trial court is affirmed.

COIL and HOUSER, CC., concur.

PER CURIAM.

The foregoing opinion by WELBORN, C., is adopted as the opinion of the Court.

All of the Judges concur.