author: HYDE, Judge.

text:
    The STATE of Missouri, at the Relation of the CHICAGO CARDINALS FOOTBALL CLUB, INC., d/b/a St. Louis Football Cardinals, an Illinois Corporation, William V. Bidwill, Charles W. Bidwill, Jr., Charles H. Shea, and Arch Wolfe, Relators, v. The Honorable James F. NANGLE, Judge of the Circuit Court of the City of St. Louis, State of Missouri, Respondent.
    No. 49858.
    Supreme Court of Missouri, En Banc.
    July 8, 1963.
    Foster, Vogel & Stroh, St. Louis, Hendren & Andrae, Jefferson City, Robert M. Ahern, Thomas D. Nash, Jr., Chicago, Ill., for relators.
    Martin A. Rosenberg, St. Louis, Barnabas F. Sears and John E. Dreyer, Chicago, Ill., for respondent.
   HYDE, Judge.

This is an original proceeding in prohibition to prevent respondent from exercising jurisdiction in the case of Walter H. S. Wolfner v. The Chicago Cardinals Football Club, Inc., d/b/a The St. Louis Football Cardinals et al. and particularly from interference in the affairs of the corporation through a trustee or receiver appointed by him. On issuance of our preliminary writ we ordered that the trustee designated by respondent restore to the ■officers and agents of the corporation “all ■corporate property and assets seized by him” and that “he refrain from further interference with the affairs of the corporation until further order of this court and that the officers and agents of said corporation until further order of this court are authorized to continue to exercise all powers and duties vested in them to the same extent if said Circuit Court judgment of November 19, 1962, had not been entered.”

Walter Wolfner was the husband of Violet Bidwill Wolfner, who died January 29, 1962. Wolfner’s petition in the Circuit Court, entitled “Petition to Sequester and Preserve Assets, for Injunction, etc.” stated facts hereinafter set out. At her death, Mrs. Wolfner owned 82% of the stock of the corporation, defendants Charles W. Bidwill, Jr., and William V. Bidwill each owned 4%, and Joseph Griesedieck, Jr., owned 10%. The corporation is an Illinois corporation doing business exclusively in Missouri, where its principal office is located, operating a National League professional football team. Mrs. Wolfner was a resident of Illinois, as' is Wolfner and Charles W. Bidwill, Jr., William V. Bidwill and Joseph Griesedieck, Jr., are residents of Missouri, as are defendants Shea and Wolfe. The other defendants (collateral heirs of Mrs. Bidwill) are residents of Illinois. Defendants Charles W. Bidwill, Jr., and William V. Bidwill were adopted by Mrs. Bidwill and her former husband, Charles W. Bidwill, deceased, by adoption decrees entered in Cook County, Illinois, in 1928 and 1933. Mrs. Wolfner’s will, probated in Cook County, Illinois, gave Wolfner a life estate in certain oil wells in Oklahoma, and gave the remainder of her -estate to her two sons, Charles and William Bidwill, and appointed them executors to serve without bond. Only Charles qualified because William was not a resident of Illinois. Wolfner appealed from the admission of the will to probate and that appeal was pending at the time of the trial. The order admitting it has now since been affirmed by the Supreme Court of Illinois. In re Wolfner’s Estate, 27 Ill. 2d 221, 188 N.E.2d 712. Wolfner has renounced the will and also filed in the probate court a petition, alleging the adoptions of Charles and William Bidwill were void, seeking to vacate the order declaring them heirs and seeking to be appointed an Administrator to Collect, said to be similar to our administrator pendente lite. The probate court sustained the validity of the adoption but Wolfner appealed and this appeal was pending in the Illinois Appellate Court, First District, at the time of the trial. Charles W. Bidwill, Jr., filed a motion to dismiss Wolfner’s renunciation on the ground that he had no interest because, on July 8, 1954, a postnuptial settlement had been entered into by Wolfner and his wife. This was still pending in the probate court as likewise was Wolfner’s application for appointment as Administrator to Collect.

From 1951 until Mrs. Wolfner’s death, Wolfner was the managing director of the corporation signing all contracts with players and determining its policies, serving without salary since 1956, and bringing about the moving of the team from Chicago to St. Louis in 1960, which has resulted in profitable operations. Charles and William Bidwill have been president and vice presdent, respectively, since 1951, at which time Charles was in college and William in prep school; and they have never had any executive functions and are inexperienced in the operation of a professional football team. Mrs. Wolfner’s will was filed for probate February 9, 1962, and after hearing was admitted to probate on May 4th. Wolfner filed his notice of appeal on May 10th but on May 7th Charles Bidwill, Jr., voted the stock belonging to the estate (which was necessary to constitute a quorum) at a special stockholders’ meeting at which Wolfner was voted out as a director and his office of managing director was abolished. The four individual relators herein were elected directors. Previously, soon after the death of Mrs. Wolfner these four had assumed management and control of the corporation, announced they would run the team, employed a new coach, moved to more sumptuous offices and usurped the duties of Wolfner as managing director. The Bidwills also barred Wolfner’s entry to Mrs. Wolfner’s home in Cook County, Illinois, and her apartment in Miami Beach, Florida. All these acts were alleged to have been pursuant to a conspiracy among them to oust Wolfner from his position as managing director, to deprive him of his lawful share as a surviving spouse and to embarrass, humiliate and discredit him. The petition also announced Wolfner’s intent to contest the will if its admission to probate was upheld and stated that at least three years would elapse before such litigation could be concluded. It is claimed that this action is an equitable action in the nature of a bill quia timet. See 2 Story’s Equity Jurisprudence (14th Ed.) 525, Chap. 24. Other allegations of Wolfner’s petition will be referred to infra.

The Circuit Court found all issues in favor of Wolfner; decreed that the corporation be sequestered by the Court until it be finally judicially determined who is entitled to the stock interest of Mrs. Wolfner therein; ordered that the individual relators as purported officers and directors of the corporation be enjoined from exercising any duties of their offices and from transacting any business of the corporation; and appointed a trustee “with full power to husband, manage, operate and preserve said defendant corporation and its assets, business and affairs and to prevent waste thereof, all under the supervision and direction of this Court until it be finally judicially determined who is the person or persons lawfully entitled” to the stock interest of Mrs. Wolfner.

Relators’ petition in prohibition challenges the jurisdiction of the respondent on three grounds: (1) that the petition for the appointment of a receiver or trustee is not ancillary to any main relief sought by the plaintiff in the Circuit Court, but is the primary relief sought; (2) that the plaintiff in the Circuit Court did not have any right to or interest in the corporate relator or its assets sufficient to support his petition for the appointment of a receiver or trustee; and (3) that plaintiff’s petition on its face showed that the stock owned by Violet Bidwill Wolfner was in custodia legis in the Probate Court of Cook County, Illinois, and therefore the Circuit Court of the City of St. Louis had no jurisdiction to appoint a receiver or trustee for the corporate relator.

The prohibition petition alleges the facts about the status and relationship of the parties, ownership of stock in the corporation and the probate proceedings and other litigation pending. Copies of Wolf-ner’s petition in the Circuit Court, other pleadings and the judgment therein and the postnuptial agreement were attached as exhibits. Respondents’ return admits the pendency of these proceedings but makes certain affirmative allegations concerning them and their effect to which reference will be made, infra. The return denies allegations of the petition not admitted including allegations that Charles and William Bidwill were adopted, their ownership of corporate stock and the validity of the postnuptial agreement. Relators filed a reply which they say “may be treated by this Court as a motion for judgment on the pleadings so that the case will be at issue.” We therefore, disregard any new matter or denials in the reply. (See State ex rel. Pontiac Realty Co. v. Nangle, Mo. Sup., 315 S.W.2d 214, 215, and cases cited.)

Relators contend that the relief sought by Wolfner’s petition was only the appointment of a receiver and that respondent had no jurisdiction to do so because appointment of a receiver must be ancillary to an action for some other purpose and there is no such thing as a plain receivership action, citing the following cases that have established this rule: State ex rel. Merriam v. Ross, 122 Mo. 435, 25 S.W. 947, 23 L.R.A. 534; Price v. Bankers’ Trust Co., 178 S.W. 745 (Mo.Sup.); State ex rel. Calhoun v. Reynolds, 289 Mo. 506, 233 S.W. 483; State ex rel. Kopke v. Mulloy, 329 Mo. 1, 43 S.W.2d 806; State ex rel. Lund & Sager v. Mulloy, 330 Mo. 333, 49 S.W.2d 1; Laumeier v. Sun-Ray Products Co., 330 Mo. 542, 50 S.W.2d 640, 84 A.L.R. 1435; State ex rel. Pettibone v. Mulloy, 330 Mo. 1084, 52 S.W.2d 402; Monticello Building Corp. v. Monticello Investment Co., 330 Mo. 1128, 52 S.W.2d 545; United Cemeteries Co. v. Strother, 342 Mo. 1155, 119 S.W.2d 762. Relator also says “sequestration” is a process and not a form of action, no longer vital in Missouri, so that appointment of a receiver could not be ancillary to sequestration, citing State ex rel. Couplin v. Hostetter, 344 Mo. 770, 129 S.W.2d 1, 3; Roberts v. Stoner, 18 Mo. 481; see also Coughlin v. Ehlert, 39 Mo. 285; Watts v. Watts, 304 Mo. 361, 263 S.W. 421, 422. Relators further say sequestration as a conservatory process is in substance a receivership, citing 79 C.J.S. Sequestration, § 2, p. 1048; High on Receivers, 4th Ed., pp. 8, 578 to 581; State ex rel. Busby v. Cowan, 232 Mo.App. 391, 107 SW.2d 805, 807. “Sequestration is a process after decree for the enforcing of the decree” and has been practically abolished in most states, including Missouri. 1 Clark on Receivers, 3rd Ed., 81, Sec. 68. It is unnecessary in most cases because of statutory methods of enforcement, execution, etc. Our view is that calling- Wolfner’s action sequestration of the corporation and ordering it sequestered means nothing more than seeking and ordering a receivership. Here the decisive question is: Did the Circuit Court have jurisdiction to appoint a receiver for the corporation on the facts stated in Wolfner’s petition?

It is said, Story, Sec. 1142, that bills quia timet “are in the nature of writs of prevention” by which a party “seeks the aid of a Court of Equity because he fears (quia tim-et) some future probable injury to his rights or interest, and not because an injury has already occurred.” Such bills are used for relief of sureties, cancellation of instruments and removal of cloud from title. (Story, Secs. 948-958.) Where property is involved, injunction and appointment of a receiver are often-used methods of relief. However, it is said, Story, Sec. 1170: “The appointment of a receiver is a provisional remedy and is not to be allowed in the absence of some independent equity growing out of or in some way connected with the action. * * * As a right, there is no such a cause of action as the appointment of a receiver. The appointment is most generally incidental to some other right, the protection of the property pen-dente lite, or to enforce the judgment of the court.” See also 3 Clark on Receivers, 3rd Ed., 1296, Sec. 701.

Respondent cites English cases and cases from some of our states holding the appointment of a receiver to take charge of property of a decedent’s estate is proper under certain circumstances even though an administrator has been appointed. Respondent also quotes from The Law of Receivers, Clark, 1918, p. 70: “Formerly the Probate Court of England did not have power to protect property during litigation as to administration and a receiver was appointed by a court of equity simply to protect the property while the suit was pending in the other court, namely the probate, ecclesiastical, or other court. The Probate Act of England (Veret v. Puprez (1868), L.R. 6 Eq. 329; Hitchens v. Birks (1870) L.R. 10 Eq. 471 at 475) and similar acts in most of our states have given probate courts power to protect property during litigation (Hitchens v. Birks, (1870) L.R. 10 Eq. 471 at 475.) Nevertheless the jurisdiction of chancery courts to protect property under such conditions have not been done away with. (Hitchens v. Birks (1870), L.R. 10 Eq. 471 at 475; Parkin v. Seddons (1873), 16 Eq. Cases 34.) When the court of equity so preserves the' property it does so because there is no one else to hold the property. The power of the court to protect property of idiots, lunatics, children and the deceased really dates back to the original power to do so held by the king and transferred to the chancellor, first the king’s secretary, and later on a judicial officer of the king.” (See also 4 Clark on Receivers, 3rd Ed., Secs. 991-997.)

Respondent further cites and relies on Underground Electric Railways of London, Ltd. v. Owsley, C.C.A. 2nd, 176 F. 26, in which the court appointed a receiver on application of a creditor with a large claim against an estate being administered in the probate court of Cook County, Illinois. Many other claims had been allowed in the probate court and others presented. Decedent owned a valuable residence and art collection in New York in possession of his widow, who also asserted a large claim. The art collection was given no care, taxes of $200,000 were unpaid and a real estate mortgage was being foreclosed for nonpayment of interest. For three years no application for ancillary administration had been made in New York but was pending when this creditor’s action was commenced. There was a dissent on the ground of lack of jurisdiction because the state courts had not refused to act. The Court said it had the full jurisdiction of the English Courts of Chancery which included the “power to appoint a receiver of an estate pending the probate of a will in the absence of the appointment of a custodian by the probate court.” As to the objection that there was no proceeding in the court to which the appointment of a receiver could be ancillary, the court said: “The appointment of a receiver is not the ultimate end and object of litigation, but is a provisional remedy or auxiliary proceeding. Alderson on Receivers, p. 15, citing State ex rel. Merriam v. Ross, 122 Mo. 435, 25 S.W. 947, 23 L.R.A. 534. Still we think that this merely means that there must be litigation in some court to which the receivership is auxiliary, and does not necessarily require that it should be in the court of equity itself. In all the English and American cases referred to the probate proceedings to which the receiver-ships were incident were in a court distinct from the court of equity. Bills merely for the preservation of property pending litigation have repeatedly been sustained.”

Obviously the situation in that case was different than here because there a re--ceiver was appointed to take charge of specific real and personal property of the decedent located within its jurisdiction. Here the asset of the estate involved is stock in a corporation which stock already is within the jurisdiction of the Illinois probate court in the custody of the executor it has appointed and subject to its orders. The attempt here is not to appoint a receiver to preserve a specific asset of the estate located in Missouri but to appoint a receiver to operate the business of an Illinois corporation in which decedent was a stockholder. This must depend on showing grounds for receivership under the law applicable to corporations. Wolfner is neither a creditor nor a stockholder (see 45 Am.Jur. 18, Receivers, Secs. 8 et seq.; 19 C.J.S. Corporations §§ 1461, 1468), pp. 1167, 1174; and although he would very likely become a stockholder if successful in his litigation and there is a distribution of estate stock, all that remains to be determined. Wolfner contends that he is an equitable owner of an interest in the corporation but that also depends on the outcome of his Illinois litigation to have his postnuptial agreement declared void. He also claims Charles and William Bidwill are illegally in control but this too depends upon the result of the Illinois litigation to have their adoption declared void and to remove Charles as executor. So far he is an unsuccessful litigant in all these cases and we know of no authority for holding that hostility of corporate officers to one who has not established his right to any interest in the corporation is enough to give him the right to have a receiver appointed.

Furthermore, while Wolfner’s petition alleged inexperience of Charles and William Bidwill (but not of other officers) and while it alleged generally mismanagement, incompetency and danger of waste and loss and possible removal of the football team from this state, this is stated only on his belief and not on facts. Instead he specifically states the amounts used for providing new offices and other expenses and the amounts of salaries are unknown to him. Wolfner does not seek liquidation (see Sec. 351.485, RSMo, V.A.M.S.) and he makes no claim of insolvency. (He alleged the corporation had bank accounts in excess of $400,000 and a value of more than $2,000,000.) The emphasis is on fears, not facts. Thus only conclusions of the pleader are presented. See State ex rel. Kopke v. Mulloy, supra, 43 S.W.2d 1. c. 811. Wolfner now claims the trial court could properly disregard the corporate entity and consider the corporate assets to be assets of the estate but we cannot view the allegations of his petition as sufficient to show either his standing to raise this issue or grounds for doing so. His petition did not proceed on that theory nor state any basis for it but instead sought only the appointment of a receiver to conduct its business. Considering his petition as a whole, it is apparent that whether he will ever have any interest in the corporation depends on the outcome of the Illinois litigation and that his statements as to the merits of these cases are conclusions of the pleader. They must be decided in the Illinois courts, not in this receivership case. In 13 Am.Jur. 1156, Corporations, Sec. 1281, it is said: “A bill quia timet cannot be maintained against a corporation having a large number of damage suits commenced against it to place its assets in the hands of a receiver to be by him preserved for the benefit of the persons who may be successful in such suits.” See Slover v. Coal Creek Coal Co., 113 Tenn. 421, 82 S.W. 1131, 68 L.R.A. 852; Irwin v. Willis, 202 Ga. 463, 43 S.E.2d 691, 4 A.L.R.2d 1265. Even contract or non-judgment creditors generally are not entitled to a receiver. 1 Clark on Receivers, 283, Sec. 187; United Cemeteries Co. v. Strother, supra, 119 S.W.2d 1. c. 767. Wolner’s claimed interest in the corporation is so uncertain, contingent and speculative that we must hold his petition shows no purpose except the appointment of a receiver to take charge of the corporation, which is not an actual asset of the estate, and therefore his petition is insufficient to show a case in which the court has jurisdiction to do so.

It is true that we have two conflicting decisions on the jurisdiction of the Circuit Court to appoint a receiver to take charge of property of a decedent’s estate during a will contest; and both concern the same receivership. In State ex rel. Hampe v. Ittner, 304 Mo. 135, 263 S.W. 158, which respondent cites, we refused prohibition to prevent the Circuit Court from proceeding with the appointment of a receiver for real estate of an estate in probate court during a will contest. However, when this receivership later came to this court on appeal from refusal of motions to vacate and revoke the appointment, in Seibert v. Harden, 319 Mo. 1105, 8 S.W.2d 905, 908, we held: “We did not rule correctly” in the Hampe case. We further held, 8 S.W.2d 1. c. 912: “If the probate court had jurisdiction over the real estate pending the will contest, and we so hold, the circuit court was without jurisdiction to appoint a receiver.” This ruling, which we hold was the correct one, was based on the jurisdiction of the probate court conferred by Sec. 34, Art. 6, 1875 Constitution. We said in the Seibert case (8 S.W.2d 1. c. 908) if the statute authorizing appointment of receivers (then Sec. 1449, R.S.1919, now Sec. 515.240, R.S.1959, V.A.M.S.) “authorized the appointment of a receiver under the facts in the instant case, it would be violative of this section of the Constitution”, namely Sec. 34, Art. 6.

Present Sec. 16, Art. 5, 1945 Constitution, V.A.M.S., confers the same broad jurisdiction. In the Seibert case (8 S.W.2d 1. c. 910), we quoted with approval from Scott v. Royston, 223 Mo. 568, 123 S.W. 454, the following: “It has been pointedly decided, however, by our Supreme Court that the reason on which equity interposed in matters of administration in the old days does not obtain with us and that the principle suggested has no application in view of our statutes with respect to administration. It is pointed out that they are so full and complete, abounding with apt and pertinent provisions to administer full, complete and adequate relief at law, and that their provisions are so ample with respect to matters of administration that they amount to an exclusion, in fact, of the chancery jurisdiction asserted, unless there be some fact or facts involved which render the case one where adequate relief at law cannot be had. * * * ‘Whatever may have been the chancery practice prior to the adoption of our present system of probate laws, since then we are clearly of the opinion that the circuit courts of the state have no jurisdiction whatever over any matter pertaining to probate business, except in rare instances, as before indicated. The jurisdiction over all such matters is given to the probate courts by the Constitution and laws of this state. Said courts are courts of record and they have exclusive original jurisdiction within their respective counties in all cases arising under the general laws of the state relating to the administration of estates and to all matters pertaining to probate business.’”

Our present Probate Code, Secs. 473.-675-73.691, RSMo, V.A.M.S., implementing the constitutional jurisdiction of pro-hate courts, now provides most comprehensive methods of administration of estates of nonresidents, making the law of this state apply to “the commencement and conduct of an administration * * * as if the decedent had been a resident of this state.” (Sec. 473.675 states certain exceptions in favor of the laws of other states.) Our ■conclusion is that Wolfner’s petition fails to -show our probate code does not provide a full, complete and adequate remedy for the ■preservation of any property of this estate •that may be located in this state and therefore shows no basis for intervention of ■equity to appoint a receiver for such prop■erty. However, since we hold that Wolf-ner’s petition does not state a case for disregarding the corporate entity of the corporation, and considering its assets as assets of the estate, his petition must be construed as seeking only the appointment of a receiver unconnected with any certain existing right.

Our preliminary rule in prohibition is made absolute.

All concur except HOLMAN, J., not sitting.


source: Caselaw Access Project

author: DALTON, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Charles Harvey ODOM, Appellant.
    No. 49294.
    Supreme Court of Missouri, En Banc.
    July 8, 1963.

      Edward G. Farmer, Jr., Joplin, Richard M. Webster, Carthage, for appellant.
    Thomas F. Eagleton, Atty. Gen., Howard L. McFadden, Asst. Atty. Gen., Jefferson City, for respondent.
   DALTON, Judge.

Defendant was charged and convicted of the offense of forcible rape of a thirteen-year-old female child in Jasper County, Missouri, committed on the 23rd day of July, 1961. The jury assessed his punishment at death. See Sec. 559.260 RSMo 1959, V.A.M.S. Motion for a new trial was filed and overruled and the cause appealed to this court.

At the time of defendant’s arraignment in the circuit court he entered a plea of not guilty. Thereafter, and before trial, defendant was permitted to change his plea so that “under his plea of not guilty the defendant asserts an affirmative defense that defendant was insane at the time the offense charged was committed.” No evidence of insanity, so as to constitute a defense to a criminal charge, was offered at the trial.

Defendant was represented throughout the trial and on this appeal by eminent trial counsel appointed by the trial court. Defendant was permitted to appeal as a poor person and he has been furnished with a free transcript of the record. The cause has been briefed and argued on appeal. No> issue is presented here with reference to. the qualifications of the panel of thirty jurors from which panel the twelve were selected to try the case, or to the information, the jury’s verdict, the admission or exclusion of evidence, the sufficiency of the evidence, the giving or refusal of instructions, the conduct of opposing counsel or the argument of counsel to the jury.

Error is assigned on the court’s refusal to grant a change of venue from Jasper County to Lawrence County on either the first or second motions therefor, the failure to grant additional time to produce an additional witness, the absence of funds to. prepare a defense and the discharge of prospective jurors (veniremen) opposed to the imposition of the death penalty in any case.

On Sunday, July 23, 1961, shortly after four o’clock in the afternoon, Lisa Schuh, a female child thirteen years of age, a resident of Wichita, Kansas, who was visiting her grandmother in Joplin, took her little puppy out for a walk around the block where her grandmother lived. At that time Vernon Stephens was inside a garage painting about a window which faced on an alley in the rear of 731 Potter Street. Another workman was on the roof of the garage. Stephens saw the defendant, Charles Harvey Odom age 29, a resident of Wellington, Kansas, driving a two-tone, white over blue, 1956 Chevrolet automobile, Kansas License No. S/Ul-0204, stop his car in the alley opposite the window where Stephens was working. Stephens was able to get a clear view of defendant’s head and face and first observed him talking to Lisa Schuh, who had stopped by the car. Stephens could hear little of the conversation, but he saw defendant get out of the car, hold a gun on the child, force her into the car, grab the little dog and throw him in and drive away in haste, holding a gun on the child. Stephens ran out of the garage in time to take the license number of the car, get its make and description and to have these facts reported to the police. The workman on the roof of the garage also saw the child walking through the alley with defendant driving his car by her side. He also observed the child huddled on the floor board of defendant’s automobile as it went down Eighth Street.

Shortly after the news was broadcast defendant’s auto was seen a short distance north and west of the city limits of Joplin, where two girls had seen the car pass and were able to see the driver. Defendant’s automobile had also been observed parked in a narrow roadway in this northwest area obstructing the passage of other vehicles. The driver of another automobile had caused defendant to back his car up for some distance to permit this other car to pass defendant’s car. Subsequently, defendant’s car operated by defendant was observed heading back into Joplin at a high speed. It was followed into the city by a police officer in an unmarked car. This officer caused defendant’s car to be stopped and defendant to be arrested at an intersection with Seventh Street, almost within the same area and approximately within an hour from the time the child was picked up.

The arresting officer observed the handle of a pistol sticking out from under the front seat of defendant’s car and on the floor of the car, in back of the driver’s seat, the officer found the child’s bloody clothing and the shoes the child was wearing when she left her grandmother’s home. The officer also found a rock with blood and hair on it and some of defendant’s own clothing. When asked where the child was, defendant denied any knowledge of her. Search was then instituted in the area where defendant’s car had been seen northwest of the city. In a secluded and desolate area in heavy brush the little dog was first located and then the unconscious and almost naked child was discovered. She was taken to a hospital where she remained unconscious for approximately six weeks. Medical examination revealed that she had had sexual intercourse and her private parts severely injured and, in addition, she had been struck on the head and her skull fractured in several places and brain tissues exposed. Witnesses identified defendant as the driver of the car in the alley where the child was seized, also as the driver of the car when it was parked northwest of the city and also as it was leaving the city and returning to it.

Statements signed by the defendant on July 26, 1961, were admitted in evidence. They showed that defendant admitted putting a pistol in the window of the car with the barrel pointing out the window towards the little girl; that the girl got into the car; that after a lapse of time, they arrived at a secluded area where he proceeded to have sexual intercourse with the child; that he probably told her to remove her clothes; that, after he had completed having intercourse with her, he was very frightened to realize what he had done; that, when he had left Springfield that afternoon he had on brown slacks, brown slippers, brown socks, a white T-shirt and a gold sweater, but when he was arrested he had on jeans, brown slippers, brown socks, a white T-shirt and a gold sweater; that he had used the rock found in his car to beat the child on the head; that he must have put the girl’s clothes in the car; that he intended to get rid of the clothes later; that, when a certain car passed him on the road and he saw a woman in the car, he tried to think of some way to get rid of the child; that he remembered picking up a rock and hitting her on the head and seeing her sort of crumple on the ground; that he hit her several times more while she was lying on her side on the ground; and that, thereafter, he hurriedly picked up her clothes, the rock and other articles, put them in the car and left the scene. Defendant did not testify at the trial.

A careful reading of the entire record in this case shows that the State’s case was so overwhelming on the issue of guilt that eminent counsel representing the defendant offered no testimony in an attempt to refute it. Counsel did cross-examine one of the State’s witnesses at length after the witness had testified as to defendant’s mental condition and his knowledge of the difference between right and wrong. Defendant’s mother was also offered as a witness for defendant and she testified that defendant was delivered by the use of instruments which left marks on his head and caused one eye to appear smaller than the other. She also reviewed his early life and the extreme poverty of the family, told how he had been shifted among relatives and friends and said that when still a child he had tried to kill himself when he was disappointed and failed to receive an expected gift at Christmas time.

In his statement to the jury after the State had concluded its case, the Honorable Richard M. Webster, one of defendant’s counsel, addressed the jury as follows: “I believe you have deduced from the positions we have taken so far * * * that there has been no strenuous activity on the part of Mr. Farmer and I to present evidence to you and there will not be, that Lisa Schuh was not attacked and raped on the 23rd day of July. There has been no evidence and there will not be [sic] that this act was not done by Charles Harvey Odom, because as I have been trying to say, our obligation is to present to you the facts and contrary to-what public opinion may be, no lawyer has-an obligation to attempt to fabricate a case, and that is the last thing that Mr. Farmer or I or any attorney that I know would attempt to do. But, we feel that the facts as-they are, should have a great weight with you in the penalty that you assess if you find that this man is in fact guilty, and it should have a great weight in your deliberation. * * * Now, we are going to present a very brief defense which is merely background information supporting the findings-which were given to you by the State’s own-witness, Dr. Wilson, with regard to the mental condition of this man. * * *

“We feel that in your determination of a sentence that those are facts which we [sic] will eventually have to consider, if you find this man guilty, and we feel that we should' provide you with additional information about this man so that you can weigh the evidence that you have before you in the light of the person involved. * * * ”

In his closing argument to the jury, the defendant’s said counsel recognized that the State’s evidence was clear and convincing when he said: “ * * * in this case we have a senseless, an unexplainable crime. A crime in which there was no malice. A crime in which we had a man whose mind was demented from a legal standpoint. He knew the difference between right and wrong. But, from the ability to control his actions, from the ability to explain his actions, there is a vast difference. You have seen these exhibits, they have been paraded: back and forth before you. They are rather sickening. I can understand the emotions that are felt by this mother of this little girl. I can understand the emotions that I am certain are felt by the members of this-jury. But, the only question in this case-with regard to the mitigation or penalty is-the question of the capacity of this man to control or account for his actions even though from a strictly legal standpoint he knew the difference between right and wrong. Ed Farmer pointed out yesterday in his interrogations of the witnesses that at all times after the crime was committed, at all times these exhibits, this rock and these clothes, all of the other exhibits, were in plain sight. A man was riding around the streets of Joplin an hour after he was seen leaving the scene of the crime. Riding, not away from the crime, but back toward the place where he picked up this little girl. Unaccountable? Unexplainable? I think that Officer Hickman had the right answer when Ed Farmer asked him, ‘Would any man in his right mind carry a rock, old milk cans and all of the clothing right in the open?’ And, his answer was, ‘In my opinion, no.’ And, you remember in the confession, when he was asked why, asked by the police, ‘Why did you do this?’ Because, of course, they are interested, too, in the man’s mentality. And, his answer was, ‘I don’t know, I guess I wanted to be caught.’ Because, you see, this man understands the damage that he’s done. This man made the statement to the police and I’ll tell you frankly, he’s made it to me. T wanted to be caught.’ ”

Did the court err in denying defendant’s first application for a change of venue from Jasper County?

On October 5, 1961, defendant presented his motion for a change of venue wherein he asked the court to “enter its order granting a change of venue in this cause to the County of Lawrence, Missouri, which is a county adjoining this county in which this cause is now pending and for such other and further relief as to the Court may seem just and proper in the premises.” (Italics ours.)

The grounds stated in the motion were:

“2. That the circumstances surrounding the crime for which the defendant is charged were given much notoriety, and many stories have been printed in the newspapers in Jasper County concerning the crime together with photographs of the scene and the parties allegedly connected therewith.
“3. That the other news media in the County of Jasper and in particular the television news media have carried long and complete accounts on their programs concerning the defendant and the crime for which the defendant is accused including pictures of the alleged details of this charge.
“4. That a civic organization in Joplin, Missouri, has solicited funds for the aid of the complaining witness and that the inhabitants of Jasper County have contributed over Three Thousand Dollars to said fund and have therefore become directly involved in the outcome of any trial held in this county.”

The conclusions sought to be drawn from these alleged facts were that:

“By reason of such notoriety, all of the inhabitants of Jasper County have become acquainted with the matters here in issue through sources outside this Court and have become prejudiced thereby and that the minds of the inhabitants of Jasper County are so prejudiced against this defendant that a fair trial cannot be had therein.” The motion was accompanied by two supporting affidavits.

Section 545.490 RSMo 1959, V.A.M.S., under which the application for change of venue was presented reads, in part, as follows :

“The petition of the applicant for a change of venue shall set forth the facts or grounds upon which such change is sought, and such petition shall be supported by the affidavit of petitioner and the affidavit of at least two credible disinterested citizens of the county where said cause is pending and the truth of the allegations thereof shall he proved, to the satisfaction of the court, by legal and competent evidence, and the prosecuting attorney may in such case offer evidence in rebuttal of that submitted in support of such application * * (Italics ours.)

On October 16, 1961, a bearing was held on the motion for change of venue to Lawrence County and defendant offered some thirteen witnesses, including defendant’s two court-appointed counsel, who testified in support of the motion. This evidence tended to show that upon the arrest of defendant a representative of the local TV station immediately took a number of photographs showing the location where the child was found, and including a picture of defendant being fingerprinted, a picture showing a gun sticking out from under the front seat of defendant’s car at the time of his arrest, and a picture of the rock and the child’s clothing. When these photographs were shown on TV they were accompanied by identifying script. The evidence further tended to show that the local newspapers, The Joplin Globe, which had an average circulation of 31,000, the Joplin News Herald, which had an average circulation of 12,000, and the Carthage Evening Press, which had an average circulation of 6,600, carried factual reports with reference to the happenings on July 23, 1961, and defendant’s confession on July 26. Copies of news articles were offered in evidence and there was testimony tending to show that these articles were not slanted against defendant, but merely gave a review of the facts in the manner that other news articles appeared. The same or similar factual information was given by radio and TV stations.

In addition to the various news articles, the evidence showed that a civic club started a movement to raise funds for medical attention for the injured child. A letter was sent to the newspapers, radio and TV stations stating that funds could be sent to the First National Bank in order to provide necessary medical and hospital care. The parties raising this fund had no interest in defendant or in his prosecution. They were interested in the injured child and in furnishing her the necessary medical help. Donations came to the fund from all over Kansas, Arkansas, Oklahoma and the whole southwest section of Missouri, including Jasper County. In none of the letters accompanying the donations was the defendant even mentioned. There was also evidence that two ladies had conducted a three-day rummage sale in Joplin to raise money for medical treatment and hospitalization of the injured child; they solicited merchants for goods, including cakes, pies and bakery goods, all of which were sold at the sale. People came from all over the county and adjoining counties and even from Arkansas to purchase goods at the sale. A total of $4,242.39 was collected for the mentioned purposes, $800 of which came from the sale of rummage. The smallest contribution to the fund was thirty-five cents. A report on the progress of collections for the fund was announced over the TV stations three times a week for some fourteen months. The fund was referred to as the “Lisa Schuh Fund.” No money was used or intended to be used in any way connected with the prosecution of the defendant.

Except for the full publicity given in news media immediately following defendant’s arrest, and the reports of his confession a few days later, the offense as such, and defendant’s connection with it, had little publicity from that time until the case was set for trial.. There was evidence that some people hadn’t even heard of the case while others assumed from the facts reported, including the confession, that defendant was guilty, or had or would plead guilty. A few news articles referred to defendant as the “confessed attacker.” The testimony indicated that some people were fully “sold” on the facts reported at the time of defendant’s arrest and by his subsequent confession. A few persons had heard opinions expressed that defendant was guilty, and others could not understand why it was necessary to appoint counsel for defendant. Most of the news items about the case had appeared within a few days after the first newspaper, radio and TV reports. There was evidence from which the court could find that, thereafter, the news reports had soon “died down.”

The representative of the TV station who took and collected the pictures for use immediately after defendant’s arrest said that the case involved the “3 S’s, sex, sadism and slaughter,” and that such a case usually increased the numbers of the listening and viewing audience on TV. There was testimony that none of the news articles contained anything to indicate that defendant would not be afforded a fair trial, and that they did not seek to influence the outcome of defendant’s trial, nor to designate or recommend any particular punishment.

The attorneys appointed to represent defendant, both well-known and capable members of the Bar, testified that they had interviewed some two to three hundred people in the county; that the case had received more publicity than any other; and that many had drawn the conclusion from the facts stated in the various newspaper reports and other news media that there was no doubt of defendant’s guilt. The attorney also testified that it was very difficult, if not impossible, to get people to testify on defendant’s behalf; however, there was no evidence presented tending to show that any of the persons so contacted knew of any facts that would help defendant, or that any of the people contacted would not have testified if they had been in possession of facts tending to show defendant not guilty, or entitled to a change of venue. The people generally who talked to either of the attorneys assumed defendant’s guilt from the facts reported. Both attorneys said they had talked to people from all over the county in an effort to discover whether bias and prejudice existed and that they felt that it did; and that defendant could not have a fair trial because of the facts reported by the news media.

There was no testimony tending to show that there were any meetings or suggestions of mob violence or any concerted action in any way to influence the results of a court trial. Many people discussed the welfare of the child and the progress she was making in the hospital, but the case against defendant was not discussed as much as one would reasonably expect in view of the facts attending defendant’s timely arrest and his confession.

The State offered some twelve witnesses in rebuttal, many of them coming from small towns and communities out over the county outside the limits of either Joplin or Carthage. Some of them had heard no comments at all with reference to the case and many of them had heard no comments indicating bias or prejudice against defendant. What little discussion they had heard was at the time defendant was arrested and gave his confession. Some didn’t even know of money being collected fcr the “Lisa Schuh Fund.” One had not heard of defendant’s confession. The witnesses offered by the State included the probate judge of the county residing in Central City, an implement and hardware dealer, a garage operator, a banker in Sar-coxie, a grocery merchant, an implement dealer at Avilla, a banker from Jasper, a furniture dealer at Webb City, a banker from Carthage, a druggist from Carthage, an automobile dealer and the postmaster at Jasper. We take judicial notice of the fact that Jasper County had a population of 78,863 in 1960.

It will be noted that defendant requested a change of venue from Jasper County to Lawrence County. There was no evidence offered tending to show that the mentioned newspapers did not circulate as widely in Lawrence County and in other adjoining counties as in Jasper County, or that the people in Lawrence County did not receive the same information given by the newspaper, radio and TV reports that the citizens of Jasper County received. There was no evidence tending to show that conditions were any different in Lawrence County from what they were in Jasper County and, of course, the court takes judicial notice that the information given by newspaper, radio and TV stations does not terminate at county lines. In any case, the trial judge heard and saw all of the witnesses and could judge of their credibility and the weight and value of their testimony far better than this court can on this appeal. Except for the testimony of counsel designated by the court to defend the defendant, there was little factual evidence given by the witnesses which would tend to show the existence of bias and prejudice of the inhabitants of Jasper County against defendant, or to show facts which would prevent defendant having as fair a trial in Jasper County as in any other county of the state. This is not a case where the news media was seeking to press the prosecution or to demand a particular verdict or punishment, or to influence the subsequent trial in any manner. Generally, they reported the news factually, while the news media in the aggregate gave much information at the time of defendant’s arrest and when his confession was announced, still there was no evidence tending to show that anyone in the county read or heard all of the reports by all the papers and all of the radio and TV stations in the county.

Appellant’s counsel recognize that under Missouri decisions “newspaper publicity alone is not grounds for a Change of Venue.” They concede that “bias and prejudice is not an objective thing but a subjective state of mind.” They admit that “they had an extremely difficult position when they attempted to produce witnesses for their position”; and that “They were then forced to rely upon the evidence of radio, newspapers and television comment.” This fact accounts for their further contention that "the objective evidence which was introduced, namely the newspaper clippings, the television transcripts, the pictures, and the deposit slips from the Lisa Schuh fund, established prejudice without a doubt.” (Italics ours.) However, we do not agree, but think the existence of bias and prejudice was not shown by the evidence. In any event its existence, if any, was a fact issue for the court under all of the evidence, and the court denied defendant’s application for a change of venue. The court did not err in overruling this application for a change of venue to Lawrence County, or to any other county. In this day and time, a case of this type is sure to be quite as fully reported by the newspapers, TV and radio stations throughout the state as it would be in the local county where the alleged offense occurred. No error or abuse of discretion appears from this record. State v. Pierson, 331 Mo. 636, 56 S.W.2d 120, 121 [1-4]; State v. Messino, 325 Mo. 743, 30 S.W.2d 750, 757; State v. May, 172 Mo. 630, 72 S.W. 918, 922. Also see State v. Londe, 345 Mo. 185, 132 S.W.2d 501, 502 [1, 2, 3], (where, as here, there was no objection to the panel of thirty jurors selected and the court had been most liberal in excusing veniremen who were not fully qualified) ; and see State v. Anderson, 252 Mo. 83, 158 S.W. 817, 822 [10] [11] [12] (where no denial or excuse for the crime was presented and the only defense was defendant’s previous good character). Under the facts in each case the court held there was no abuse of discretion in refusing to grant a change of venue.

Appellant has cited Janko v. United States, 366 U.S. 716, 81 S.Ct. 1662, 6 L.Ed. 2d 846, where the court reversed an opinion of the United States Circuit Court of Appeals, reported in 8 Cir., 281 F.2d 156. The ground for reversal does not appear in the Per Curiam opinion of the United States Supreme Court. There was a diversity of opinion in the United States Circuit Court of Appeals for the 8th Circuit on certain issues in the case; however, there was no diversity of opinion as to the absence of prejudice from newspaper publicity at the time of the trial. It appears from the Circuit Court of Appeals’ opinion that no member of the jury trying the case had read the article in the St. Louis paper that appeared while the trial was in progress. The Circuit Court of Appeals held that, on the record, no prejudice to the defendant could possibly have resulted from the presence of the newspaper articles in question. It further pointed out that, “Some element of practicality and realism in matters of this kind is still indi•cated. It is yet the law that the determination of the issue of publicity prejudice remains primarily a matter for the trial •court’s discretion.” And it further quoted from Justice Holmes’ comment that, “ ‘If the mere opportunity for prejudice or corruption is to raise a presumption that they •exist, it will be hard to maintain jury trial under the conditions of the present day.’ ” We may not assume that the United States Supreme Court would have reversed the ■Circuit Court of Appeals on the issue of trial publicity and its effect, absent a showing that any member of the jury had seen or heard or read the article in the St. Louis paper published during the course of the trial. It is true that the article published, if read, would have been highly prejudicial and it would have informed the jurors of matters that could not have been •shown in the course of the trial. Such is not the case here.

Other cases cited by appellant include Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250; Stroble v. State of California, 343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872 and Shepherd v. State of Florida, 341 U.S. 50, 71 S.Ct. 549, 95 L.Ed. 740. In the Marshall case two newspapers containing prejudicial and inadmissible information had gotten before a substantial number of the jurors during the course of ■of the trial and the United States Supreme Court pointed out that: “In the exercise of our supervisory power to formulate and apply proper standards for enforcement of the criminal law in the federal courts * * * we think a new trial should be granted.”

In the Stroble case the court held that the record failed to establish that newspaper accounts of a murder, for which defendant was arrested and tried, or newspaper accounts of defendant’s confession had aroused against the defendant such prejudice in the community as to necessarily prevent a fair trial; and that the confession, which was one of the most prominent features of the newspaper accounts, was made voluntarily and was introduced into evidence at the trial itself. The judgment of the trial court was affirmed.

In Shepherd v. State of Florida, 341 U. S. 50, 71 S.Ct. 549, 95 L.Ed. 740, prejudicial influences outside the courtroom in a highly publicized trial were brought to bear on the jury with such force that the conclusion was inescapable that the defendants were prejudged as guilty; and that the trial was but a legal gesture to register a verdict already dictated by the press and by public opinion, which the highly inflammatory articles had generated. Further, the published newspaper article represented as a fact that the defendants had confessed and no one repudiated that statement, and no evidence of a confession was offered at the trial.

In Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751, the jury selected in the trial court included eight persons who on voir dire examination had expressed their opinion as to defendant’s guilt of the crime which had had extensive newspaper, radio and television coverage preceding the trial. It was held that an impartial trial could not be had and the conviction for murder was void. The cases cited do not rule the issues here presented.

No question of publicity at or immediately before the trial appears in this case and no error is assigned as to the qualifications of the panel of thirty jurors from which the twelve were selected to hear the case.

Appellant next contends that “the Court erred in failing to grant the defendant a Change of Venue from Jasper County, Missouri, at the time a second motion was made at the close of the voir dire examination.” The record in this case shows that only one written application was made for a change of venue, as hereinbefore referred to, but at the close of the voir dire examination and after the final selection of the panel of thirty qualified jurors, one of defendant’s counsel made the following statement: “In view of the questions as propounded by the State and the answers from the witnesses on voir dire examination pertaining to the knowledge and information that they had pertaining to the crime, in view of the fact that of the sixty-four prospective jurors who were questioned, each of them stated that they did have information pertaining to the crime. The defense at this time renews it’s motion for a change of venue from the County of Jasper.” The court refused the request.

While all of the sixty-four prospective jurors brought into court had heard of the case at about the time of its alleged occurrence and knew of the existence of such a case through newspaper, TV or radio reports, none of the sixty-four had talked to any witnesses in the case nor had they discussed the facts with anyone purporting to know the facts of the case. Of the total number summoned for jury duty some twenty were disqualified as being opposed to the death penalty and some of these were also disqualified on the ground of having formed an opinion from the newspaper, radio or TV reports. Among the sixty-four were a few jurors who were well acquainted with some members of the child’s family and had formed an opinion. There is no suggestion here that the panel of thirty jurors was not fully qualified to hear the case. It was from this list that twelve were selected to try the cause.

In Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751, cited by appellant the court said: “It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.”

For the reasons hereinbefore stated, the court did not err in refusing appellant’s-motion for a change of venue orally renewed at the close of the voir dire examination. See State v. Lehman, 182 Mo. 424,. 81 S.W. 1118, 1123, 66 L.R.A. 490.

Appellant further contends that: “The court erred in failing to grant the defendant an additional thirty minutes in which to-produce the testimony of an additional witness.” The witness was not named in the request, in the motion for a new trial, or here. The record presented shows that, at 9 a. m. on November 9, 1961, defendant’s counsel, Edward G. Farmer, Jr., advised! the court as follows: “At this time the defendant makes the request that this matter be continued, at least an hour or a half hour, to enable the defendant’s counsel to-converse with two witnesses. It was called' to the defendant’s counsel’s attention at eight o’clock this morning that there were two people who lived in Bell Center, the vicinity of this alleged crime, who were witnesses to the fact that the car was being driven by Lisa Schuh rather than by the defendant. This evidence tends to discredit testimony by the prosecutor’s witnesses that the defendant was seen driving the car, and it might further be said, that the defendant’s counsel did not have an opportunity to interview these two witnesses before the trial was taken up again before the Court ordered the matter to commence.”

The record further shows:

“THE COURT: Well, the Court has waited from 9:00 A.M. until 9:40 A.M., and apparently the parties have not arrived and the request will be refused.”

Counsel then stated that the sheriff’s department had notified the people and directed them to appear. The court then said: “ * * * let the record show that the subpoenas have been issued and the parties were called on the telephone by the sheriff. The Court does not feel that the testimony would be such as to make any material difference in the defense of the defendant.”

It is apparent that no written request was made for a continuance, no affidavit was filed as to what either witness would say. They had not been interviewed by counsel, nor had either witness been personally served with a subpoena. No showing was made that the alleged witnesses or either of them intended to appear by reason of the telephone messages, nor was it shown that the witnesses intended to •or did appear in court within any reasonable time. The indicated testimony did not bear on the guilt or innocence of the defendant, nor on the issue of punishment, .and defendant could not have been prejudiced by the court’s ruling. Clearly, the matter was within the court’s discretion .and no abuse of this discretion appears from this record. Further, in view of the -manner in which the cause was tried and -the admissions of counsel, the absence of such evidence was not prejudicial to the •defendant. See State v. Scott, Mo.Sup., 338 S.W.2d 873, 876; State v. Gaddy, Mo.Sup., 261 S.W.2d 65, 68[5].

Appellant further contends that, “the defendant was not adequately represented because neither the defendant nor his counsel -were' provided with any funds with which to prepare the defense, obtain psychiatric •examination for the defendant, or obtain expert testimony with regard to the defendant’s mental condition or capacity.” This issue was first presented to the court in the motion for a new trial which was filed on December 8, 1961, subsequent to the verdict of the jury, which verdict was returned into court on November 9, 1961. The only place that the matter is even mentioned in this record, other than in the motion for a new trial, was in the opening statement of defendant’s counsel after the rState had closed its case. In that statement Mr. Webster said to the jury; “As you know, Mr. Farmer and I were appointed to defend Mr. Odom. That has a special significance, because when an attorney is appointed to defend, that occurs when you are defending a man totally and completely without funds and it means, of course, that your attorney is serving totally and completely without funds.”

The record fails to show that counsel at any time indicated to the court that funds were needed to prepare the defense, obtain psychiatric examination or expert testimony with regard to defendant’s mental condition or capacity. No request was made te the court to have defendant sent to any state institution for examination as to his mental condition or capacity. Since the matter was not presented to the court or ruled upon during the course of the trial, or before, nothing is presented for determination by this court at this time.

Appellant further contends that: “The Court erred in discharging for cause all members of the jury panel who stated they were opposed to the giving of the death sentence for reason that the striking for cause of such jurers prevented the selection of a cross section of the population of the county in a case in which a death sentence is not mandatory under the law.”

During the hearing on voir dire examination the defendant made no objection at any time to the court’s action in discharging jurors on the ground that they had indicated that they were opposed to the death penalty. The State had indicated that it would seek such penalty. On several occasions during the examination of the jurors, the State requested the discharge of certain prospective jurors from the panel by reason of their “opposition” to the death penalty. They were discharged on that ground and defendant’s counsel made no objection whatsoever at the time to this action by the court. Others were also discharged on the ground that they had indicated that they “didn’t believe in capital punishment.” Not having objected at the time, it is, of course, too late at this time for appellant to raise the question sought to he presented. It was several times stated that the State was asking for the death penalty and no objection was raised to that statement. The contention, however, is wholly without merit. See Sec. 546.130 RSMo 1959, V.A.M.S.; State v. Swinburne, Mo.Sup., 324 S.W.2d 746, 751[5].

The judgment is affirmed.

All of the Judges concur except HOLMAN, J., not sitting.


author: COIL, Commissioner.

text:
    STATE of Missouri ex rel. CITY OF CREVE COEUR, a Municipal Corporation, Neal E. Willis, Ralph H. Schnebelen, Leo Reuther, Joseph Loida, Aldermen, and John T. Beirne, Mayor of the City of Creve Coeur, Appellants, v. ST. LOUIS COUNTY, Albert Bailey, Russell A. Grantham, Maurice Abramson, John Malloy, John Dowling, John O’Hara, Edward Murphy, Constituting the St. Louis County Council, Herbert Poertner, Director of Public Works, St. Louis County, James McNary, County Supervisor of the County of St. Louis, Gordon Wolff and Eugene L. Wolff, Trustee for Ridgeview Stockholders Liquidation Trust, Respondents.
    No. 49524.
    Supreme Court of Missouri, Division No. 1.
    July 8, 1963.
    Wyne & Delworth, William H. Wyne, Jr., Edward J. Delworth, Clayton, for relator-plaintiff.
    Norman C. Parker, St. Louis County Counselor, Clayton, Gerald Bamberger, Asst. St. Louis County Counselor, Clayton, Robert Mass, St. Louis, Merle Silverstein, Rosenblum & Goldenhersh, Clayton, for ■defendants-respondents.
   COIL, Commissioner.

This case in its present posture involves ■an appeal by the City of Creve Coeur, its mayor and aldermen, from a judgment dis-missing their petition for a declaratory judgment. Hereinafter we shall refer to -appellants as plaintiffs and respondents as ■defendants.

Plaintiffs brought their action against St. Louis County, members of the county ■council, the county Director of Public Works, the County Supervisor, Gordon Wolff and Eugene Wolff as trustee for a •stockholders’ liquidation trust. They alleged in substance: that prior to March .28, 1950, the legislative power of St. Louis •County was vested in a county court which, •on June 13, 1946, adopted a “Zoning Or•der” for the unincorporated portions of the county; that on March 28, 1950, pursuant to Article VI, Section 18(a), Missouri Constitution of 1945, V.A.M.S., a lióme rule charter was adopted which vested the county’s legislative power in a •council, including the legislative power pertaining to planning and zoning that part of the county outside incorporated •cities, with the proviso, however, that until superseded by ordinance of the council the laws pertaining to planning and zoning then in effect would continue; that on December 8, 1954, the County Council adopted ordinance 542 which in turn adopted the above-mentioned “Zoning Order.” Ordinance 542, inter alia, set forth detailed procedures for changes in zoning, including a provision for a petition to the “Planning Commission.” That ordinance further provided that “in cases where the land affected lies within one and one-half miles of the limits of a municipality,” if a written protest was filed, “by the City Council or Zoning Board of any such municipality, * * * such change in Zoning may not be passed except by the affirmative vote of four members of the County Council.”

Plaintiffs alleged further that defendant Eugene Wolff as trustee owned land described in the petition which, prior to July 17, 1957, was zoned as single family residential districts; that one of said tracts was within 1½ miles of plaintiff city’s limit; that on February 27, 1957, a petition was presented to the County Planning and Zoning Commission for certain described zoning changes in the several districts described, including changes from residential to business, from single family to two family, and reducing the number of square feet necessary for single family residences; that on April 22, 1957, plaintiff, the City of Creve Coeur, protested the requested rezoning to the planning commission and thereafter a public hearing was held, and on July 3, 1957, the commission denied the rezoning request; that on July 17, 1957, the County Council adopted, by a vote of six in favor and one against, ordinance 1059, which was thereafter approved by the County Supervisor and which rezoned the land in question in accordance with defendant Wolff’s petition for the changes in zoning heretofore described; that on July 18, 1962, plaintiff city filed a declaratory judgment action in St. Louis County seeking to annex part of the land described in the present petition which is adjacent to the north boundary of plaintiff city and which action at the time of the filing of the present action was awaiting trial in the circuit court; that on March 22, 1962, defendant Director of Public Works issued to defendant Gordon Wolff a permit to build three duplexes on a portion of the property described in the petition.

The petition alleged further that many residents of plaintiff city have invested large sums of money in real estate and improvements located on land adjacent to the rezoned area and that they will sustain substantial and irreparable damage to their properties if ordinance 1059 remains in force and effect and if Wolff is permitted to build duplexes on a portion of the property; that the orderly progress and development of Creve Coeur and St. Louis County will be impossible, and the proposed rezoning will cause a “degeneration of property values.”

Plaintiffs averred further that “said purported Ordinance No. 1059 is illegal, invalid, void, unlawful, unconstitutional, improper, arbitrary and capricious and of no legal effect for the following reasons:

“(a) That said ordinance and the proceedings enacting it are wholly and completely in violation of the terms, provisions, spirit and purpose of the aforesaid ‘Zoning Order for the Unincorporated Portions of St. Louis County, Missouri.’
“(b) That the attemped enactment of said Ordinance No. 1059 was arbitrary, capricious, illegal, and without basis in law and in fact and represents an abuse of discretion by said St. Louis County Council.
“(c) That in enacting said Ordinance No. 1059 the aforesaid St. Louis County Council acted without authority and in excess of its power and jurisdiction.
“(d) That the enactment of said Ordinance is illegal, invalid, contrary to law and unconstitutional as not promoting the health, safety, comfort, morals or the general welfare or of conserving and protecting the property and building value or of securing the most economical use of land or of facilitating the provision of public improvement in accordance with a comprehensive plan, but rather constitutes an illegal ‘spot’ or preferential zoning on an arbitrary and capricious basis to the end that said defendants may use said land to suit their caprice and desire and at the expense and to the detriment of plaintiffs and all other residents of the community involved and was not supported by competent and substantial evidence on the whole record.
“(e) Said Ordinance No. 1059 was not properly and lawfully considered, voted upon, or adopted in that it was not passed by affirmative vote of all the members of the County Council according to statute therefor made and provided.
“(f) Said Ordinance No. 1059 deprives plaintiff and others of their property without due process of law in violation of the Constitution of the United States and of the State of Missouri.
“(g) That said Ordinance No. 1059’ does not have a fair tendency to accomplish or aid in the accomplishment of the purposes and powers of the St. Louis County Council as set out in its Charter as set out above.
“(h) That the enactment of said Ordinance was based on inadequate and incompetent evidence.
“(i) That the procedure employed by the Council in the passage of said Ordinance was contrary to the Ordinances of St. Louis County and the rule of procedure of the County Council made and provided for the passage of ordinances of St. Louis County. * * *
“WHEREFORE, plaintiff prays this Court to declare the rights and obligations of plaintiff City and determine the validity of Ordinance No. 1059 of St. Louis County and to declare the rights, status, and legal relationship of plaintiff and defendant in regard to said ordinance and to enjoin defendant County from proceeding further under said ordinance and from issuing any building permits or authorizing any subdivision of land based upon said ordinance and for such further relief as to the Court shall seem meet and proper together with the costs of this action.”

The trial court sustained the separate motions of defendants and dismissed plaintiffs’ petition on the grounds, among others, that it failed to allege facts upon which the relief prayed for could be granted and failed to allege sufficient facts-to show that plaintiffs were proper parties to maintain the action.

Inasmuch as we are of the view that plaintiffs’ petition fails to state a claim upon which relief can be granted, we shall not rule the interesting question raised by •defendants’ first contention (in their brief) that plaintiffs, as a municipality and the ■officials thereof, assert no interest which may be legally protected and, consequently, are not proper parties plaintiff to maintain this action for declaratory relief. The ■only case we have found ruling the question is Borough of Creskill v. Borough of Dumont, 28 N.J.Super. 26, 100 A.2d 182, 192 [IS, 16]. There, the court held that inasmuch as a municipality may adopt zoning ordinances for the public good and is •charged with the duty of enforcing those •ordinances in the public interest, it has the power to bring a declaratory judgment action to protect the public’s interests, even though the ordinance attacked is one adopted by and applying to land located in a neighboring county or borough. On appeal, however, 15 N.J. 238, 104 A.2d 441, 444 [1], the New Jersey Supreme Court found it unnecessary to decide whether plaintiff borough and other individual plaintiffs who resided in boroughs other than the one enacting the zoning ordinance, could maintain the declaratory judgment action because the record showed •that certain of the plaintiffs were property owners in the very area to which the zoning ordinance applied. Cf. City of Nevada v. Welty, 356 Mo. 734, 203 S.W.2d 459.

It is apparent from plaintiffs’ petition that the basis for the relief sought is the charge that ordinance 1059 “is illegal, invalid, void, unlawful, unconstitutional, improper, arbitrary and capricious and of no legal effect for the following reasons: * * There follow nine ■averments as the supporting “reasons.” It is unnecessary to again set forth those ■“reasons,” (a) through (i), heretofore quoted. It appears that all of them, except “reason” (e), constitute the conclusions of the pleaders and not statements of fact. Hardy v. McNary, Mo., 351 S.W.2d 17, 21 [9]; Goodson v. City of Ferguson, Mo., 339 S.W.2d 841; Spiking School Dist. v. Purported “Enlarged School Dist. R-11, DeKalb County, Mo.,” 362 Mo. 848, 245 S. W.2d 13, 18 [5]; Miller v. Ste. Genevieve Co., Mo., 358 S.W.2d 28, 30 [5-8]. It is well settled that those conclusions may not be considered in determining whether plaintiffs have stated a claim for declaratory relief. Hardy v. McNary, supra.

The “reason” lettered (e), heretofore quoted, which is a statement to the effect that ordinance 1059 was not lawfully adopted in that it did not pass by an affirmative vote of all the members of the council in accordance with the provisions of the applicable statute, cannot constitute a claim upon which relief can be granted because our recent case, Casper v. Hetlage, Mo., 359 S.W.2d 781, specifically ruled that the statutory provision requiring the unanimous vote of all members of a county court where a protest had been lodged against rezoning had been superseded and did not apply to a home rule charter county, and that, consequently, a rezoning ordinance adopted by the St. Louis County Council in Casper was valid even though only five of its seven members voted for the ordinance. As we have noted heretofore, plaintiffs’ present petition alleged that ordinance 1059 was enacted by a vote of six councilmen in favor and one against Consequently, it seems clear that the only-averment of fact contained in the “reasons” set forth above, entitled plaintiffs to no declaratory relief in the light of this court’s ruling in the Casper case, supra.

It follows that the trial court correctly dismissed the count of plaintiffs’ petition seeking relief by declaratory judgment, the only present issue, and therefore the judgment is affirmed.

PER CURIAM.

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

All concur.


author: BOHLING, Commissioner.

text:
    Fred McCANDLESS, Appellant, v. Thomas MANZELLA, d/h/a American Cab Company, Respondent.
    No. 49332.
    Supreme Court of Missouri, Division No. 2.
    July 8, 1963.
    Albert J. Yonke, Kansas City, for appellant.
    John C. Russell, Donald E. Raymond,. Kansas City, for respondent; Russell, Raymond & Brennan, Kansas City, of counsel.
   BOHLING, Commissioner.

Fred McCandless had a verdict and judgment for $25,000.00 for personal injuries against Thomas Manzella, doing business as the American Cab Company. Defendant was granted a new trial on eight of the twenty-two grounds assigned in his motion therefor, six alleging prejudicial conduct by plaintiff’s counsel and two alleging error in instructions. Plaintiff has appealed.

The trial of this case started October 25, 1961, and involved injuries received about noon January 9, 1956. The evidence favorable to plaintiff was to the following effect: Plaintiff, 58 years old in 1961, was working in 1956 as a bartender from 4:00 p. m. until 1:30 a. m. On the morning of January 9, 1956, he was in the One-Eleven Bar in Kansas City, Missouri, for thirty to forty minutes, had a couple of bottles of beer, and had a cab ordered to take him to the Canton Cafe, where he intended to eat. An “American Cab” came, with a lady driving. Plaintiff got in the front seat, and was taken to the Canton Cafe. The cab stopped close to the curb. Plaintiff opened the door, which opened to the front, put his right foot on the curb, reached in his pocket, and paid the cab driver sixty-five cents. The motor was running. The cab had a manual shift. The cab driver started counting the money, using both hands. Plaintiff continued getting out of the cab and, while he was so doing, the cab went forward about two or two and a half feet and the back of the front seat hit him and threw him out onto the sidewalk. He landed with full force on his right hip. He was severely injured, sustaining a fracture of the right femur, which caused great pain and would necessitate time-consuming and expensive medical services.

Defendant’s evidence, if believed, sustained the following findings. Plaintiff had been drinking and was unsteady on his feet. He rode in the rear seat of the taxicab. The cab was stopped about six or seven inches from the curb in front of the Canton Cafe. The street is level. Plaintiff backed out of the cab from the right rear door, turned as if he were going toward the restaurant, slipped or tripped and fell onto the cement sidewalk. The motor of the taxicab was turned off when it stopped to let plaintiff out. The taxicab did not move. There was a strong odor of liquor on plaintiff’s breath1, and he was under the influence of alcohol.

Police officer George M. Vernon testified that about five years ago as he was leaving the Canton Cafe at the lunch hour he noticed a man backing out of the rear door of a taxicab operated by a lady driver. The man turned as if going to the restaurant, lost his balance and fell onto the cement sidewalk. Witness tried but was unable to catch and keep the man from striking the sidewalk. Witness had the opinion the man was under the influence of alcohol. Officers are supposed to make a report when a person is injured. Witness did not make a report, did not know whether the person was injured. He gave the information to the district officer upon that officer’s arrival, turned the matter over to him and went ahead with his own business.

Officer Joseph F. Smith testified in rebuttal that he was in charge of the records of the Kansas City Police Department; that he found no report in his records of an accident involving plaintiff and an American Cab on January 9, 1956; that it was customary for officers to make a report of a casualty they see while on duty but he did not know of any rule that required such a report in every instance.

The rulings of misconduct on the part of plaintiff’s counsel involved the following occurrences of record.

Phil Evola, a witness for defendant, owned the One-Eleven Club on January 9, 1956. His testimony as to plaintiff’s condition on said morning was damaging to plaintiff. The following occurred on cross-examination by Mr. Yonke:

“Q What business aré you in? A I am an employee of the Paramount Music
Shop, Manager. Q Is that some sort of a juke box outfit? A No, sir. Q Does Manzella have anything to do with it? A No, sir. Q Who does? A Nick Civella. Q Did Nick Civella have any interest in your business? A No. Q Does Nick Civella have any interest in the American Cab? A No, sir.
“MR. RUSSELL: We object to this type of question.
“THE COURT: Overruled.
“MR. YONKE: I «wonder if we have the Mafia running all through this case.
“MR. RUSSELL: I object and ask the jury to disregard the remark of counsel pertaining to the Mafia.
“THE COURT: If the jury heard any such remark they will disregard it.” (Emphasis added.)

Defendant’s argument was defensive to avoid any prejudice created by the remark of plaintiff’s counsel. He stated:

“I come up here and I am defending a man named Manzella. He is of Italian descent. They tried to get the Mafia into the case because the man is an Italian and he runs a cab company. All these insinuations add up to nothing more than dirty pool. They didn’t have a lawsuit to begin with so they just come in and attempt to muddy up the waters. That is what they said, that they intimated into the case.”

Then in closing, plaintiff’s counsel stated:

“Who is muddying the waters? It sounds like Mr. Manzella. Counsel says the police didn’t report it because they don’t report drunks. It is a darn sad situation when the Police Department of Kansas City, Missouri, doesn’t make a report on a drunk. Do you mean you believe that? No report was made because Mr. John Manzella and Mr. Willie Manzella were around there and took care of these things. They were moving around in there, don’t you see? That is the way they operate that cab company.
“MR. RUSSELL: I object to the insinuation as highly improper.
“THE COURT: Sustained.
“MR. YONKE: Why didn’t you bring them in?
“MR. RUSSELL: I am not on trial in this lawsuit.
“MR. YONKE: (continuing) Let’s not talk about who is muddying the waters with their Evolas and their police reports and their people running around at the scene, not getting witnesses names except the ones they want to produce.”

Trial courts are vested with discretionary authority over questions of fact and matters affecting- the determination of fact issues in ruling on motions for new trial. De Maire v. Thompson, 359 Mo. 457, 222 S.W.2d 93, 97 [5]. Appellate courts are liberal in deferring to a trial court’s action on fact issues because of that court’s better knowledge of the trial atmosphere and incidents, and their effect on the jury. De Maire case, supra [6]; Castorina v. Herrmann, 340 Mo. 1026, 104 S.W.2d 297, 300 [11]; McFarland v. Wildhaber, Mo., 334 S.W.2d 1, 4 [9]. The appellant has the burden of affirmatively establishing reversible error. The respondent does not have to establish' the correctness of the trial court’s ruling. Hardy v. McNary, Mo., 351 S.W.2d 17, 20 [2, 3], and cases cited. It is stated in Robbins v. Brown-Strauss Corp., 363 Mo. 1157, 257 S.W.2d 643, 648: “The trial judge was in an excellent position to gauge the effect of the improper and objectionable argument, and, if he deemed the overall effect to have been so prejudicial as to deprive plaintiff of a fair and impartial trial as he undoubtedly did, he had the duty to cause the entry of the new trial order, although no objection had been made to such argument.” See also Stroh v. Johns, Mo., 264 S.W.2d 304, 307 [8-10], quoting and applying Beer v. Martel, 332 Mo. 53, 55 S.W. 2d 482, 485 [13, 14]. However, where the assignment is that the court erred in refusing to grant a new trial, the claimed trial error must ordinarily be marked by proper and timely objection. The Stroh case, supra.

Plaintiff’s pleaded and submitted theory of his case was that defendant, Thomas Manzella, owned, operated and did business as the American Cab Company. His inquiry about Nick Civella having “any interest in the American Cab” did not tend to identify or reflect on the credibility of the witness Phil Evola, as plaintiff appears to argue, citing Wilcox v. Coons, 362 Mo. 381, 241 S.W.2d 907, 915 [17, 18]. The inquiry appears to have been made to reflect on the credibility and integrity of defendant. It conflicted with plaintiff’s said theory of his case, and plaintiff should not have been permitted to attempt to prove that which conflicted with the pleaded theory of his case on the fact involved. Swan v. Stuart, Mo.App., 353 S.W.2d 805 [2, 3]; E. C. Robinson Lumber Co. v. Ladman, Mo.App., 255 S.W.2d 72, 78 [7].

The definition of the “Mafia” in Webster’s Third New International Dictionary reads: “1: a secret society of political terrorists * * * 2: a secret organization composed chiefly of criminal elements and usu. held to control racketeering, peddling of narcotics, gambling, and other illicit activities throughout the world * *

The trial court, upon reflection, could find the remark of plaintiff’s counsel (viz.: “I wonder if we have the Mafia running all through this case”) immediately following the overruling of defendant’s objection disclosed the real purpose of plaintiff’s inquiry as to Nick Civella’s interest in the American Cab, and that counsel sought to connect defendant with Nick Civella and the Mafia. From the court’s statement for the jury to disregard the remark if they heard it, plaintiff argues it was said in a low voice and the jury probably did not hear it. The transcript shows these proceedings were within the hearing and presence of the jury, and elsewhere in the transcript proceedings out of the presence and hearing or in the presence but out of the hearing of the jury are fully noted. Assignment No. 17 in defendant’s motion and here under discussion was sustained by the trial court, including the allegation therein that said misconduct occurred within the presence and hearing of the jury. Appellate courts accept the record certified to them. Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644 [4],

The court also sustained assignment 18 of defendant’s motion, which assignment related to the argument (quoted supra) on behalf of plaintiff. Plaintiff had the right to reply to defendant’s argument, but was not authorized to make any reckless assertion he pleased. The extent of a reply rests largely within the discretion of the trial court. Brunskill v. Farabi, Mo.App., 181 S.W.2d 549, 558 [19]. “The field of argument to the jury is a broad one, but the law does not contemplate that counsel in argument may go beyond the issues and urge prejudicial matters * * Robbins v. Brown-Strauss Corp., supra, 257 S.W.2d 648 [5]. See Critcher v. Rudy Fick, Inc., Mo., 315 S.W.2d 421, 427 [4], The trial court could construe plaintiff’s argument as accusing defendant of procuring the police to violate their duty to report occurrences taking place while on duty; of taking care of and suppressing these things, and of operating his taxicab business in a sinister manner. In sustaining assignment 18 the trial court found, after deliberation, that this argument was made to further and enlarge the prejudicial effect of the prior reference to Nick Civella and the Mafia occurring during the reception of the evidence. There was no affirmative substantial evidence of record to sustain said argument, and the argument was improper. Kelsey v. Kelsey, Mo.App., 329 S.W.2d 272, 274 [7].

In view of the trial court’s superior knowledge of the local situation and position to observe the effect upon the jury of occurrences during the course of the trial, we are not inclined upon the whole of the record before us to overturn its findings and conclusions on the foregoing issues. Faught v. Washam, Mo., 329 S.W.2d 588, 604 [30]; Myers v. Moffett, Mo., 312 S.W. 2d 59, 65 [3]; Baker v. Fortney, Mo.App., 299 S.W.2d 563, 567, and cases cited.

We will not extend this opinion to develop other issues presented by plaintiff. Some should not occur upon a retrial; and no doubt plaintiff will re-examine the instructions in the light of defendant’s criticisms and make such changes therein as he may consider proper.

The order granting a new trial is affirmed and the cause is remanded.

BARRETT'and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: HOLMAN, Commissioner.

text:
    Percival C. BARNES, Jr., and Dorothea N. Barnes, Plaintiffs-Respondents, v. ANCHOR TEMPLE ASSOCIATION, Defendant-Appellant.
    No. 49111.
    Supreme Court of Missouri, Division No. 1.
    Jan. 14, 1963.

      Harry C. Avery, Ralph V. Wilson, St. Louis, for appellant.
    No appearance for respondent.
    John J. Morris, City Counselor, University City, for University City, amicus curiae.
   HOLMAN, Commissioner.

Defendant has appealed from the judgment of the trial court by which it was “enjoined and restrained from using Lot 20, Block 5 of University Heights Subdivision No. 1, University City, State of Missouri, as a parking area for automobiles.” The said injunction was based upon a finding that “the use of said lot for the parking of automobiles is in violation of the Declaration of Trust and Agreement dated January 19, 1905,” which contained certain restrictive covenants relating to the use that could be made of the lots located in University Heights Subdivision.

Defendant’s Masonic temple is located on Delmar Boulevard which, at that point, is a very heavily traveled thoroughfare in University City. During the spring of 1961 defendant began the construction of a parking lot on Lot 20 which is situated just west of its temple. The parking lot was intended for the use of the members and guests of defendant. Plaintiffs owned and occupied the residential property that adjoined Lot 20 on the west. All of the property mentioned in this paragraph is located in University Heights Subdivision.

Shortly after plaintiffs learned that defendant intended to construct the parking lot they filed their petition in this action, wherein they alleged that the construction and use of Lot 20 for that purpose would violate the following restriction applicable to University Heights Subdivision, to wit: “No building other than a private dwelling house, and the stable and outbuildings appurtenant thereto, shall be erected on any of said lots, nor shall any lot or part thereof be used or occupied for any but private residence purposes * *

The primary contention of defendant in the trial court (and here) was that the proposed use of Lot 20 should not be restrained because (1) the quoted restrictions do not prohibit the use of the lot for a parking lot; (2) that in any event the word “stable” as used in 1905 should be construed to mean the same as “garage” or “parking area” today; (3) that by reason of lapse of time and changed conditions, the restrictions had ceased to be effective and enforceable. Another point mentioned for the first time in the motion for new trial and briefed here will be referred to hereinafter.

We must first consider the question of our appellate jurisdiction. See Art. V, Sec. 3, Constitution of Missouri, 1945, V.A.M.S., and Sec. 477.040 RSMo 1959, V.A.M.S. In its jurisdictional statement defendant says we have jurisdiction because “Title to real estate is involved, the amount in controversy is over $15,000, and a constitutional question regarding the public welfare is involved.” For reasons hereinafter stated we have concluded that we do not have jurisdiction of this appeal.

We have heretofore held that in an injunction suit of this nature title to real estate is not involved in the constitutional sense. Rombauer v. Compton Heights Christian Church, 328 Mo. 1, 40 S. W.2d 545. Also, the testimony in this case does not support the suggestion that more than $15,000 is in dispute. Since plaintiffs did not seek a money judgment the applicable rule is that the “ ‘amount in dispute must be determined by the value in money of the relief to the plaintiff, or of the loss to the defendant, should the relief be granted, or vice versa, should the relief be denied.’ ” Long v. Norwood Hills Corporation, Mo. Sup., 360 S.W.2d 593, 596. While plaintiffs alleged that their property “would be depreciated in value if said parking lot is constructed and maintained on said premises and if said premises are used or occupied for parking lot purposes,” there was no evidence as to the amount they would be damaged in the event of such use. There is also no evidence as to the amount, if any, defendant would be damaged as a result of a judgment prohibiting the use of the lot as a parking area. It is therefore apparent that we do not have jurisdiction because of the amount in dispute.

In order to preserve a constitutional question for review there must be a compliance with the following requirements : “ * * * the question must be raised at the first available opportunity: Woodling v. Westport Hotel Operating Co., 331 Mo. 812, 819(2), 55 S.W.2d 477. The sections of the Constitution claimed to have been violated must be specified: Robinson v. Nick, 345 Mo. 305, 309(5), 134 S.W.2d 112, 115(11). The point must be presented in the motion for new trial, if any: Red School Dist. [No. 1 of St. Charles County] v. West Alton School Dist., Mo.Sup., Div. 2, 159 S.W.2d 676, 677(2). And it must be adequately covered in the briefs: McGuire v. Hutchison, 356 Mo. 203(4), 201 S.W.2d 322, 327(8).” City of St. Louis v. Butler Co., 358 Mo. 1221, 219 S.W.2d 372, 376. In the case before us there was no suggestion of a question involving a construction of either the United States or Missouri Constitution until the filing of defendant’s motion for new trial which contained an assignment that “The Court erroneously and unlawfully adjudged and decreed said alleged restrictions valid and binding, in contravention of and paramount to, provisions of the Constitution of the United States and the Constitution of Missouri relating to public welfare, health and safety * * Also one of the points briefed here is that “The Court erred in failing and refusing to find that under the constitutions of Missouri and the United States that portion of the restrictive covenant which the Court erroneously held to prohibit the use of the parking lot was subject to, and subordinate to, the ‘public welfare.’ ”

Defendant has failed in two respects to preserve any constitutional question for review. In the first place, it was not timely raised. If defendant desired to contend that the restrictions in question violated a constitutional provision, it certainly should have pleaded such in its answer in order to comply with the requirement that it be raised “at the earliest opportunity consonant with good pleading and orderly procedure under the circumstances of a given case.” Appeal of Mac Sales Co., Mo.Sup., 256 S.W.2d 783, 784. Assigning that contention for the first time in its motion for new trial was not sufficient under the circumstances of this case. McClard v. Morrison, Mo.Sup., 273 S.W.2d 225.

There has also been no compliance with the requirement that the sections of the constitution alleged to have been violated must be specified. No section of either the state or federal constitution has been specified or cited in the motion for new trial or brief. The only suggestion is that it involves sections relating to the “public welfare.” That is not sufficient. Even if we disregard the rule that the sections must be specified, we cannot confidently identify the section or sections to which defendant intended to refer from the meager description thereof in the motion for new trial and brief.

As stated, we accordingly rule that no question involving a construction of any constitutional provision has been preserved for review.

We have examined the record in the light of the other provisions of Article V, Section 3, supra, and find no other basis for giving this court jurisdiction of this appeal.

We accordingly rule that this cause should be transferred to the St. Louis Court of Appeals. It is so ordered.

COIL, C., not participating.

HOUSER, C., concurs.

PER CURIAM.

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

All concur.