author: TITUS, Judge.

text:
    In the Matter of E- and G-. GG, Appellant, v. CR and LR, Respondents.
    No. 8630.
    Springfield Court of Appeals. Missouri.
    June 9, 1967.

      Gregory D. O’Shea, Barnhart, for appellant.
    John William Ringer, Dexter, for respondents.
   TITUS, Judge.

Respondents, husband and wife, petitioned the Circuit Court of Stoddard County to adopt two siblings. Written consent of the natural parents was filed with the petition. We do not attempt to relate all procedures involved, but on July 2, 1966, the natural father (appellant herein) filed a Motion to Set Aside Consent to Adoption and Change of Custody Order, and in the Alternative, Motion For Directed Verdict at the Close of all of the Evidence. This was the second such motion appellant had filed — the first having encountered an adverse ruling following a hearing. At the conclusion of another hearing held July 5, 1966, the July 2nd motion was overruled and a decree of adoption entered. Appellant’s Motion for New Trial filed July 9, 1966, was overruled September 6, 1966, and on September 16, 1966, appellant filed his Notice of Appeal “to the Springfield Court of Appeals from the Decision of the Circuit Court of Stoddard County on a Motion to Set Aside Consent for Adoption and Change of Custody entered in this action on the 6th day of September, 1966.” On the eighty-ninth day after the notice of appeal was filed in the trial court, i. e., December 14, 1966, appellant filed in the Circuit Court a Motion for Extension of Time for Filing of Transcript. Appellant had never ordered a transcript on appeal from the court reporter. The motion to extend the time for filing the transcript was overruled by the trial court and we are now confronted with respondents’ motion to dismiss the appeal. No transcript on appeal has been filed in this court and no communications have been received from appellant.

Concerning adoption, V.A.M.S. § 453.060, subd. 4, provides a “party shall have the right to appeal from the judgment in the manner and form provided by the civil code of Missouri.” Of course the appeal should have been taken from the judgment or order of the circuit court entered July 5, 1966 (V.A.M.R. 82.04; V.A. M.S. § 512.050) and not “from the Decision of the Circuit Court * * * on a Motion to Set Aside Consent for Adoption and Change of Custody entered * * * the 6th day of September, 1966.” However, as the courts have long humored similar errant appellants by not dismissing their appeals on this score, we too will indulge this transgression. Mills v. Berry, Mo.App., 395 S.W.2d 228, 231(8); City of Joplin v. Joplin Water Works Company, Mo., 386 S.W.2d 369, 370(1, 2); State ex rel. State Highway Commission v. Kendrick, Mo., 383 S.W.2d 740,742-743(1,2).

“The transcript on appeal shall be filed with, and the action transferred to, the appellate court within 90 days from the date of filing of the notice of appeal” (V.A.M.R. 82.18) unless the time for filing be extended by the trial court which has authority to do so only if “the transcript on appeal be ordered in writing from the court reporter within 30 days after the filing of such notice of appeal and a duplicate copy of such written order to the reporter be filed in the case within 15 days thereafter.” Even in such event “the trial court shall not extend the time for filing the transcript on appeal for a longer period than six months from the date of the filing in the trial court of the notice of appeal * * * ” V.A.M.R. 82.19; Stroup v. Radican, Mo.App., 341 S.W.2d 333, 334(1). Assuming appellant had ordered the transcript on appeal from the reporter (which we are advised he did not), the trial court could not have extended the time for its filing beyond March 17, 1967. As the order for the transcript was not made, the filing should have been made in this court within ninety days from September 16, 1966, or no later than December IS, 1966, and under the circumstances herein the trial court had no authority to extend the time beyond that date. Gaddy v. State Bd. of Registration For Healing Arts, Mo.App., 397 S.W.2d 347, 349. “In any event, the six-month period passed and expired as had the initial ninety-day period, i. e., without the transcript having been filed or even ordered” (Petition of Union Electric Company, Mo.App., 356 S.W.2d 300, 304), and respondents’ motion to dismiss the appeal for failure to file the transcript within the time specified is not frivolous. Eastman Kodak Stores, Inc. v. Summers, Mo.App., 377 S.W.2d 476, 482. “If, after filing a notice of appeal, the appellant fails to take the further steps to secure appellate review within the periods of time allowed or as extended by the trial court the appellate court may dismiss the appeal, unless, for good cause shown, it has granted further time for taking such steps.” (Our emphasis.) V.A. M.R. 83.26. Appellant has never petitioned this court to exercise its discretionary power to extend the time for filing the transcript and, a fortiori, has not shown good cause, or any cause, why this case should be continued pendent. He likewise has not contested or countered respondents’ motion in any way. The code and rules of civil procedure were designed to accelerate litigation and deprive appellants of the right to determine when they should commence to prepare the transcript and file it on appeal. Kattering v. Franz, 360 Mo. 854, 231 S.W.2d 148, 149. Many situations require liberality on the part of appellate courts, even sua sponte, to enlarge the time for filing transcripts on appeal. However, when appellant, as here, is totally mute and any continuation of this matter would serve only to promote apprehension and unrest in the family newly formed by the adoptions, we are of the opinion the appeal may properly be dismissed. Accordingly, respondents’ motion to dismiss the appeal is sustained and the appeal is ordered dismissed.

STONE, P. J., and HOGAN, J.’ concur.


source: Caselaw Access Project

author: BLAIR, Judge.

license: Public Domain

text:
    Wallace H. BUTLER and Shirley R. Butler, Respondents, v. Raymond C. MANLEY and Trula L. Manley, Appellants.
    No. 24659.
    Kansas City Court of Appeals. Missouri.
    June 5, 1967.

      Martin Anderson, Kansas City, for appellants.
    Bancroft M. Tapp, Ennis, Browne & Martin, Kansas City, for respondents.
   BLAIR, Judge.

This is an action for unlawful detainer originally brought in the magistrate court where judgment was rendered for the plaintiffs, Wallace H. Butler and Shirley R. Butler, and against the defendants, Raymond C. Manley and Trula L. Manley. The defendants appealed to the circuit court where a summary judgment was rendered for plaintiffs on their petition for possession of the premises involved and against the defendants on their counterclaim. The question of the value of monthly rents, profits and damages was left for trial. Subsequently this question was tried by the court and it was adjudged that the plaintiffs were entitled to the sum of $2,550.00. On this appeal there is no question about this last portion of the judgment except it is argued that plaintiffs were not entitled to a summary judgment for possession of the premises involved and therefore not entitled to any sum for monthly rents, profits and damages. The defendants appeal to this court on the ground that “there were controlling material facts in dispute to preclude the entry of summary judgment” in favor of plaintiffs for possession of the premises and against defendants on their counterclaim.

A disposition of this appeal requires consideration of a former action between these same parties. In September, 1961, the defendants in this action purchased the real estate involved and conveyed it by deed of trust to Wilbur B. Ennis, as trustee for Ray Simley & Co., Inc., to secure the payment of a note for $16,800.00 payable to Ray Simley & Co., Inc., at the rate of $110.83 per month. On September 29, 1965, Ray Simley, acting for Ray Simley & Co., Inc., advised Wilbur B. Ennis, the trustee, that the note secured by the deed of trust was in default and directed him to sell the real estate according to the terms of the deed. It was sold at public auction and purchased by Wallace H. Butler and Shirley R. Butler, the plaintiffs in this action.

Thereafter Raymond C. Manley and Trula Manley, the makers of the note and grantors in the deed of trust, and defendants here, brought suit in the circuit court of Jackson County naming Ray Simley & Co., Inc., Ray Simley, as an individual, Wilbur Ennis, the trustee, and Wallace H. Butler and Shirley Butler, the purchasers, as defendants and alleging that they had all wrongfully, fraudulently and maliciously conspired together to cheat and defraud the plaintiffs by foreclosing the deed of trust and selling the real estate, although all payments due on the note had been paid when due and there was no default, and that defendants, pursuant to this conspiracy, caused the deed of trust to be foreclosed and the property to be sold to Wallace H. Butler and Shirley Butler, thereby wrongfully, fraudulently and maliciously depriving the plaintiffs of their equity in the real estate. They alleged that the value of their equity was $7,500.-00. They prayed for judgment for $7,500.-00 actual damages and $15,000.00 punitive damages. The circuit court granted a summary judgment against the plaintiffs and for all the defendants. No appeal was taken from that judgment and it had become final at the time the present suit for unlawful detainer was litigated.

In the case before us the petition for unlawful detainer was in the conventional form and it stands unquestioned. The defendants filed an answer and a counterclaim. There is no need to recite the details of these pleadings for there is no dispute about what they embrace. The answer embraced the identical allegations pleaded in the conspiracy suit which these defendants lost, and nothing more. The counterclaim embraced the identical allegations pleaded in the conspiracy suit, and nothing more, and prayed for $7,500.00 damages. All of the proceedings in the conspiracy suit were before the trial court in this action and there was no challenge that the summary judgment rendered for these plaintiffs and against these defendants was invalid for any reason. There is none here. The only question that the defendants say was in dispute in this action and which precluded a summary judgment was whether they were in default under the deed of trust according to its terms. The obvious answer is that question was finally settled against them in the conspiracy suit. We are not concerned with whether the issues were decided rightly or wrongly in the conspiracy suit. What does concern us is that those issues were decided and put at rest by a final judgment and they cannot be relitigated in this suit. “It is a fundamental principle of jurisprudence that material facts or questions which were in issue in a former action, and were there admitted or judicially determined, are conclusively settled by a judgment rendered therein, and that such facts or questions become res judicata and may not again be litigated in a subsequent action between the same parties or their privies, regardless of the form the issue may take in the subsequent action, whether the subseqent action involves the same or a different form of proceeding, or whether the second action is upon the same or a different cause of action, subject matter, claim, or demand, as the earlier action. In such cases, it is also immaterial that'' the two actions are based on different grounds, or tried on different theories, or instituted for different purposes, and seek different relief.” 30A, Am.Jur., Judgments, Sec. 371, p. 411, quoted with approval in Norwood v. Norwood, 353 Mo. 548, 183 S.W.2d 118, 122-123, McIntosh v. Foulke, 360 Mo. 481, 228 S.W.2d 757, 761 and Kansas City v. Martin, Mo.App., 391 S.W.2d 608, 614. See also: 17A Mo.Digest, Judgment, ®=5713 (2).

Consequently, there was no genuine issue as to any material fact for all of the issues raised by the answer and counterclaim in this action had been previously and finally adjudged in the conspiracy suit. The trial court had no alternative but to grant the summary judgment for plaintiffs for possession of the premises and against defendants on their counterclaim on the ground that the proceedings and judgment in the conspiracy suit constituted unassailable proof that plaintiffs were entitled to such judgment as a matter of law. Civil Rule 74.04, V.A.M.R.; Ware v. St. Louis Car Company, Mo.App., 384 S.W.2d 287, 290.

Viewing the cause in this light, we see no reason to analyze the other grounds that plaintiffs put forward as validating this judgment. This judgment is completely valid for the reasons we have advanced. There ismothing in the authorities adduced by the defendants which would warrant any different conclusion. The appeal is without merit and the judgment must be affirmed.

It is so ordered.

All concur.


text:
    KANSAS CITY, Missouri, Respondent, v. Elmer J. HOWE, Appellant.
    No. 24627.
    Kansas City Court of Appeals. Missouri.
    June 5, 1967.

      Henry H. Fox, Jr., Kansas City, for appellant.
    Herbert C. Hoffman, City Counselor, Richard W. Mason, Jr., Associate City Counselor, Kansas City, for respondent.
   BLAIR, Judge.

Originating in the municipal court of Kansas City, this prosecution for parking a motor vehicle in a prohibited zone in violation of a city ordinance resulted in the conviction of the defendant, Elmer J. Howe. He was fined $10.00. He appealed to the circuit court. There he waived trial by jury and was again fined $10.00. He appeals.

The ordinance on which the prosecution was based is Section 58.1040(F), Chapter 58, Revised Ordinances of Kansas City. It prohibits the “standing or parking” of a motor vehicle during “designated hours” on “described streets” on all days “except Saturdays, Sundays and public holidays”. The validity of this ordinance stands unquestioned. The city presented only one witness, Police Officer Scobee, who testified that on Thursday, March 27, 1966, he found a 1957 Cadillac automobile bearing Missouri License Plate No. SOR970 parked on Locust Street in Kansas City in direct violation of Section 58.1040(F), supra. He placed a parking violation summons on the vehicle, a copy of which became the information against the defendant in the municipal and circuit courts. On cross-examination he testified he had no knowledge of the identity of the person who controlled, operated or had the vehicle in use at the time he placed the violation summons on it. He was the only witness for the city. The city established by official records that the defendant held the legal title to the vehicle on the day and at the time and place of the violation. The defendant and the city then stipulated that the defendant was the owner of the vehicle at all relevant times. Then the city introduced Section 58.1040(F), supra, the ordinance violated, and in addition, Section 58.010, Chapter 58:

“Section 58.010. Definitions. — Whenever in this chapter the following terms are used, they shall have the meaning respectively ascribed to them in this sec- • tion:
“Owner — A person who holds the legal title of a vehicle, or in the event the vehicle is subject of an agreement for the conditional sale or lease thereof, with the right of purchase upon performance of the conditions stated in the agreement, and with immediate right of possession vested in the conditional vendee or lessee, or in the event a mortgagor of a vehicle is entitled to possession, then such conditional vendee or lessee or mortgagor shall be deemed the owner for the purpose of this chapter. The operation or . use of a motor vehicle in violation of the provisions of this chapter shall be prima facie evidence that said vehicle was at the time of such violation controlled, operated and used by the owner thereof.” (Emphasis supplied)

On this appeal the defendant undertakes to challenge Section 58.010, last quoted, as being in contravention of the 5th and 14th Amendments to the Constitution of the United States. Some resume of the occurrences at the trial is of value in determining whether he has validly challenged this ordinance. Before the presentation of the evidence commenced, he addressed himself orally at length in an effort to convince the trial court that the information standing against him did not embrace sufficient specific allegations of fact to charge him with any offense. Nothing was said about any constitution. The city then presented its evidence, including the two ordinances. The defendant raised no objection of any nature, constitutional or otherwise, to the introduction of these ordinances. He then presented an oral motion for a judgment of acquittal. Again he argued at length that the information was insufficient because it did not embrace sufficient specific allegations of fact to charge him with any offense and ended his argument on the motion by finally saying “The very wording of the prima facie statute would require the defendant to rebut, and to rebut would force the defendant to testify against himself. And under our Fourth — rather Fifth and Fourteenth Amendments, which particularly the Fourteenth Amendment, is applicable on our state statutes, state laws, this simply can’t be done.” The “prima facie statute” to which he was referring was Section 58.010, supra. He stood on his plea of not guilty and his motion for judgment of acquittal. He presented no evidence. His conviction followed.

Strangely enough, the city does not question our jurisdiction to determine the constitutionality of Section 58.010, supra. Instead it joins with the defendant in an extensive debate regarding the constitutionality of this ordinance. Neither party suggests any awareness that the Supreme Court has exclusive appellate jurisdiction in all cases involving the construction of the Constitution of the United States and of this state, Sec. 3, Art. 5, Const, of Mo., 1945, V.A.M.S. and that jurisdiction which is not ours can never be conferred on this court by acquiescence of the parties where that jurisdiction does not exist. 8 Mo.Digest, Courts,; In re Wellston Trust Co., Mo., 131 S.W.2d 720; Higgins v. Smith, 346 Mo. 1044, 144 S.W. 2d 149; State v. Norman, Mo.App., 193 S.W.2d 391. Our first duty is to determine whether we have jurisdiction before we attempt to decide this appeal and this is true whether our jurisdiction is challenged or not. Edwards v. Sittner, Mo.App., 206 S.W.2d 578; Farrell v. DeClue, Mo.App., 365 S.W.2d 68; Allen v. Smith, Mo.App., 375 S.W.2d 874 ; 2 Mo.Digest, Appeal and Error,

Our conclusion is that the defendant has not raised and preserved any constitutional question and this is true for more than one reason. The only allegation of error based on constitutional grounds in his motion for a new trial is a claim that Section 58.010, supra, the prima facie evidence ordinance, “presumed guilt in a criminal or quasi criminal case in violation oi Amendment Fourteen of the Constitution of the United States and in violation of Article I, Section 10, of the Constitution of Missouri, 1945, in that defendant was thereby denied due process of law.” To raise and preserve a federal' or state constitutional question for appellate review the question must (1) be raised at the first available opportunity, (2) the section or sections of the constitution claimed to be violated must be specified, (3) the question must be kept alive at every stage of the proceeding, (4) the question must be presented in a motion for a new trial and (5) it must be adequately covered in the briefs. Deacon v. City of Ladue, Mo.App., 294 S.W.2d 616; State v. Brookshire, Mo., 325 S.W.2d 497; City of St. Louis v. Friedman, 358 Mo. 681, 216 S.W.2d 475 ; 8 Mo.Digest, Part 2, Courts, 21 Mo.Digest, Municipal Corp.,.

The defendant’s attempt to invoke Art. 1, Sec. 10, Const, of Mo., 1945, is a total failure because it was not mentioned during the trial and was mentioned for the first time in the motion for a new trial. And now there is no mention of it in his briefs in this court. His attempt to invoke Amendment 5, Const, of U.S. is a total failure because although, as observed, he did mention it during the trial, he does not mention it in his motion for a new trial. This leaves only the question whether he has properly invoked Amendment 14, Const, of U.S., which he mentioned during the trial and in his motion for a new trial. As our resume of the occurrences of the trial shows, he allowed Section 58.010, supra, the prima facie evidence ordinance, to be introduced into evidence without invoking any constitutional provision, federal or state. In short, he allowed his “first available opportunity” to question the constitutionality of Section 58.010, supra, to pass him by. For all these reasons there is no constitutional question in this case and we have jurisdiction.

There is a final reason why there is no state or federal constitutional question in this case. When an identical question involving the constitutionality of an ordinance or a law has been finally settled by the Supreme Court, that question is no longer an open one and that court does not take jurisdiction of the same question in subsequent cases and jurisdiction resides in the courts of appeals. This is particularly true where there is no contention that the constitutional question already settled was settled erroneously. State v. Brookshire, supra, 325 S.W.2d 1. c. 500. The decisions substantiating these statements are so numerous that it is only necessary to refer to 8 Mo.Digest, Courts,.

The identical constitutional questions sought to be presented on this appeal have already been settled by the Supreme Court. City of St. Louis v. Cook, 359 Mo. 270, 221 S.W.2d 468. Although the city relies on this decision and quotes from it at length in its brief, the defendant does not undertake to demonstrate that its ruling is erroneous or even mention it in either his principal or reply brief. In Cook, the city prosecuted a defendant under a city ordinance declaring it to be an offense to park any vehicle on any public street in any prohibited zone. That ordinance was not questioned. The defendant was convicted in the city court for a violation of that ordinance. He appealed to the court of criminal corrections. In that court, the city introduced evidence to establish that a motor vehicle had been parked on a public street in a prohibited zone in violation of that ordinance. Evidence was then presented that the motor vehicle “was registered on the records of the Secretary of State in defendant’s name, and likewise on the records of the City License Collector of St. Louis. No other or direct evidence was introduced tending to identify the person who had actually parked the vehicle. And defendant did not introduce any evidence.” The city invoked an ordinance providing “The presence of any vehicle in or upon any public street * * * in violation of any ordinance regulating the parking of such vehicle * * * shall be prima facie evidence that the person * * * in whose name such vehicle is registered on either the records of the city license collector or the records of the Secretary of State of Missouri, committed or authorized such violation.” On this record the defendant was again found guilty.

On appeal to the Supreme Court, he contended that the prima facie evidence ordinance violated Sec. 10, Art. 1, Const, of Mo., 1945, and Amendment 14, Sec. 1, Const, of U.S., by depriving him of “life, liberty or property without due process of law”, and that it compelled him “to testify against himself in a criminal cause”. He asserted the ordinance violated “the fundamental rules that a defendant is presumed to be innocent; and that the (sic) State must prove him guilty beyond a reasonable doubt; and that he cannot be prejudiced by his failure to testify.” Against all of these contentions, the court held the prima facie evidence ordinance constitutional. "“Statutes or ordinances providing a rule of ■evidence, in effect, that a shown fact may ■support an inference of the ultimate or main fact to be proved are well within the settled power of the legislative body; and Such legislative provisions do not violate provisions of the federal or state constitutions. * * * ‘Legislation providing that proof of one fact shall constitute prima facie evidence of the main fact in issue is but to enact a rule of evidence, and quite within the general power of government. Statutes, national and state, dealing with such methods of proof in both civil and ■criminal cases, abound, and the decisions ■upholding them are numerous.’ * * * ■Giving a regard to due process, the power to provide such an evidentiary rule is qualified in that the fact upon which the presumption or inference is to rest must have some relation to or natural connection with the fact to be inferred, and that the inference of the existence of the fact to be inferred from the existence of the fact proved must not be purely arbitrary or wholly unreasonable, unnatural, or extraordinary. * * * And it is clearly beyond the legislative power to prescribe what shall be conclusive evidence of any fact. * * * It is ‘only essential that there shall be some rational connection between the fact proved and the ultimate fact presumed (or inferred), and that the inference of one fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate.’ * * * From a practical standpoint it would be impossible for the police department of the City of St. Louis to keep a watch over all parked vehicles to ascertain who in fact operates them. In such a situation and in view of the purpose of City’s traffic regulations, the City having shown the vehicle to have been parked in violation of the regulatory ordinance and having shown a defendant to be the person in whose name the vehicle is registered, it would seem an owner-registrant, a defendant, could not be said to be put to too great an inconvenience or to an unreasonable hardship in making an explanation if he desires. The connection between the registered owner of an automobile and its operation is a natural one. While there are no doubt instances where an owner’s automobile is used without his authorization, yet it is not generally so. If, in fact, defendant’s vehicle was parked at the time without any authorization from defendant, such fact was peculiarly within defendant’s knowledge and, if defendant had desired, the fact could have been easily proved with such certainty as to almost entirely preclude a false conviction. In our opinion the inference authorized by the Ordinance No. 41240 is a reasonable one. The ordinance does not make any inferred fact conclusive. And the ordinance does not require that a defendant testify; nor does it deny him his right to make out his defense, to testify.” The court grounded its ruling on decisions from national and state courts, including decisions of the Supreme Court of this state, and affirmed the judgment.

We recognize that although a prosecution for a violation of a city ordinance is regarded as a civil action, it is said to have quasi criminal aspects and that questions involved on this appeal “will be resolved under legal principles and procedural rules applicable to criminal cases.” Kansas City v. Mathis, Mo.App., 409 S.W.2d 280. Although the defendant makes much of this, it is of no consequence. Even in true criminal cases, both felonies and misdemeanors, the Supreme Court has held prima facie evidence statutes constitutional when challenged on tlie grounds that this defendant asserts and has ruled that the Legislature can validly declare that proof of a certain fact shall be deemed prima facie evidence of an essential element of an offense and that triers of fact, if the fact prescribed by statute is proved, are warranted in finding the existence of that essential element and in finding it to be established beyond a reasonable doubt if they choose to do so. State v. Shelby, 333 Mo. 1036, 64 S.W.2d 269, 273; State v. Buck, 120 Mo. 479, 25 S.W. 573, 576; State v. Bockstruck, 136 ' Mo. 335, 38 S.W. 317, 321.

The defendant places his reliance on City of St. Louis v. Bruñe Management Co., Mo.App., 391 S.W.2d 943; Kansas City v. Mathis, Mo.App., 409 S.W. 2d 280; City of Seattle v. Stone, 67 Wash. 2d 886, 410 P.2d 583; People v. Hoogy, 277 Mich. 578, 269 S.W. 605. There is nothing in Bruñe Management Co. tending to support defendant. It only ruled that a prosecution for the violation of a city ordinance which carries a fine for its violation is penal in nature and the city must prove the defendant violated the ordinance before he can be found guilty. Nor is there anything in Mathis supporting defendant. We ruled only that a prosecution for a violation of a city ordinance is regarded as a civil action having quasi criminal aspects and that the accused is clothed with the presumption of innocence and cannot be convicted unless his guilt is established beyond a reasonable doubt. We adhere to this rule. But on a record identical with this one, the Supreme Court ruled in Cook that the defendant was not deprived by the prima facie evidence ordinance of the presumption of innocence or his right to a verdict of not guilty unless found guilty beyond a reasonable doubt. By affirming the judgment it necessarily ruled that on the evidence before it the trial court had the right to find that the presumption of innocence had been overcome and that the defendant was guilty beyond a reasonable doubt. Anything in the Washington or Michigan decisions cited by the defendant contrary to the ruling in Cook, and the Missouri rulings we have cited, cannot be followed.

Accordingly, the constitutionality of the prima facie ordinance before us has been settled and we must treat it as valid and hold that the trial court, applying it, had the right to find on all of the evidence, that the presumption of innocence had been overcome and to find beyond a reasonable doubt that the defendant “controlled, operated and used” his motor vehicle at the time and place it was parked in violation of the regulatory ordinance on which this prosecution is grounded.

The defendant attempts to question the sufficiency of the evidence to establish his guilt beyond a reasonable doubt and the sufficiency of the information to charge an offense. We decline to rule either question. His brief palpably fails to comply with Civil Rule 83.05, V.A.M.R. which fixes the standards that must be met by an appellant’s brief in (1) its statement of facts, (2) its points relied on and (3) its argument of those points. This rule is binding on defendant whether this controversy is regarded as a criminal or civil case. Criminal' Rule 28.18. Civil Rule 83.05 requires a fair and concise statement of the facts relevant to the questions presented for determination. Concerning the sufficiency of the evidence the defendant in his statement of facts offers us only two sentences: “It is admitted that the automobile in question was owned by appellant, but not that appellant parked the car,” and “The only evidence objected to was the evidence of the officer who placed the ticket (information) upon the automobile”. This is no statement of facts relevant to the determination of the question whether the evidence was sufficient to warrant a finding of guilty beyond a reasonable doubt. Next his point relied on is “The evidence was wholly insufficient to prove defendant violated any city ordinance penal in nature beyond a reasonable doubt.” Civil Rule 83.05 requires that any point relied on shall state what actions or rulings of the trial court are claimed to be erroneous and why the court was wrong. This is no compliance with the rule. White v. Nelson, Mo.App., 283 S.W.2d 926. The rule finally requires that the appellant present an argument. On this question he merely repeats his point relied on and says “The latest and the controlling case is Kansas City v. Mathis, decided by this court, 409 S.W.2d 280, * * ”. Then he quotes from that decision abstract statements that in a prosecution for a violation of a city ordinance, the city must overcome the presumption of innocence, prove every element of the offense and establish the guilt of the defendant beyond a reasonable doubt. Following this he ends by saying “There is no evidence that appellant had committed an offense” and then lets the whole matter drop. There is no slightest-reference to any specific evidence present in the record or absent from it. This is no argument and no compliance with the rule. A point relied on which is not argued in a manner to meet the rule requiring argument is abandoned. Urie v. Thompson, 357 Mo. 738, 210 S.W.2d 98.

While we decline to make any formal ruling on the sufficiency of the evidence, we are convinced by our examination of the record, taking the Cook and other cases we cite into account, that there is no merit in the point attempted to be presented. If we were to decide the point according to the rule applicable to criminal cases tried before the court without a jury, we would be forced to hold that there was competent and substantial evidence supporting the finding of guilt and we would be bound by that finding. State v. Sargent, 241 Mo.App. 1085, 256 S.W.2d 265; State v. Williams, Mo.App., 349 S.W.2d 375. If we were to decide the point in accordance with Civil Rule 73.01(d) governing civil cases tried before the court without a jury, the evidence presented by this record would compel us to defer to the trial court’s finding of guilt.

Concerning the defendant’s challenge that the information is insufficient, he does not set it out verbatim in his statement of facts. What he sets out is his version of it and the parties to this appeal have always differed deeply regarding what it actually alleges. In these circumstances, the information should have been set out in full. The point relied on is “The information failed to state a cause of action against defendant”. Obviously, this point is insufficient for it utterly fails to state why the information is insufficient. This is no compliance with the rule. White v. Nelson, supra. The defendant’s argument is equally insufficient. First he repeats verbatim his point relied on. Then he states “Under the rule in City of Raytown v. Roach [Mo.App.], 360 S.W.2d 741, and Kansas City v. Franklin, 401 S.W.2d 949, there can be no question but that the information fails to state a cause of action against appellant.” Next from Roach he quotes abstract statements to the effect that in a prosecution for a violation of a city ordinance the information must contain specific allegations of the facts constituting the offense charged. Following this he says “That this information is fatally defective appears upon its face. No evidence should have been received under such an information” and again lets the whole matter drop. There is no slightest reference to any allegation present in the information or absent from it and no reason is suggested why we should rule it insufficient. This is no argument and no compliance with the rule and we regard the point as abandoned. Urie v. Thompson, supra.

Repeatedly the bar has been admonished, and it is again admonished, that obedience to the rules of appellate procedure will be enforced. In this there is no arbitrariness or injustice. “The rules of appellate practice in hand are simple and plain. They fill no office of mere red tape, or as a show of surface routine. To the contrary, they have substance, and carry on their face the obvious purpose to aid appellate courts in getting at the right of a cause. * * * If they are not to be obeyed, they should be done away with once for all. A just rule, fairly interpreted and enforced, wrongs no man. Ostensibly enforced, but not, it necessarily wrongs some men, viz., those who labor to obey it — the very ones it should not injure.” (Emphasis supplied) Sullivan v. Holbrook, 211 Mo. 99, 104, 109 S.W. 668, 670; Walker Brothers, Inc. v. J. K. Seear (U.S.A.) Ltd., et al, Mo.App., 364 S.W.2d 51; Ambrose v. M.F.A. Co-operative Ass’n of St. Elizabeth, Mo., 266 S.W.2d 647, 648.

The judgment is affirmed.

All concur.


author: MAUGHMER, Commissioner.

text:
    David E. SHARP, Respondent, v. Marie Miller SHARP, Appellant.
    No. 24594.
    Kansas City Court of Appeals. Missouri.
    June 5, 1967.

      Donald W. Giffin, Jerome T. Wolf, Spencer, Fane, Britt & Browne, Kansas Gity, for appellant.
    Keith Martin, Payne, Jones, Anderson, Martin & Payne, Olathe, Kan., James E. ■Campbell, Kansas City, for respondent.
   MAUGHMER, Commissioner.

Divorce case. No children involved. The ■defendant wife was granted a decree of divorce, but has nevertheless appealed. She says first, the court was without jurisdiction of the subject matter and, second, her motion for continuance should have been sustained.

The marital litigation between David E. Sharp, plaintiff in the suit before us and his wife, the defendant, Marie Miller Sharp, began in the District Court of Wyandotte County, Kansas, where Mrs. Sharp filed a suit for separate maintenance on February 19, 1964. That court on July 28, 1964, granted her separate maintenance and awarded the real estate in the State of Kansas held jointly by the parties, to her, free of any lien or claim of her husband. Mr. Sharp was never personally served with summons in that suit. In January, 1966, the Supreme Court of Kansas reversed the judgment and remanded the cause to the District Court of Wyandotte County, 196 Kan. 38, 409 P.2d 1019, where it has ever since quietly rested. On January 22, 1964, Mrs. Sharp filed suit against Mr. Sharp in the Circuit Court of Jackson County, Missouri, asking for a divorce, an accounting and a restraining order. Disposition of that suit will shortly be revealed.

On April 4, 1964, Mr. Sharp, as plaintiff, filed the instant suit against Mrs. Sharp in the Circuit Court of Jackson County, Missouri. Therein he alleged, among other things, that he had been “a resident of the state of Missouri for more than one whole year next preceding the filing of this petition, and each and all of the defendant’s actions hereinbefore mentioned and complained of occurred within the state of Missouri”. The stated grounds for divorce were indignities. To this petition defendant filed a motion to dismiss for want of jurisdiction, which the court, after hearing evidence thereon, overruled. The cause came on for hearing and trial on February 2,1966, at which time defendant filed her motion for a continuance based upon unavailability of certain material witnesses and the illness of defendant. Coupled with this motion the defendant prayed for dismissal of the suit or continuance of the same until the defendant’s suit for separate maintenance and determination of the rights of the parties in and to jointly owned Kansas real estate was determined by the District Court of Wyan-dotte County, Kansas. The court continued the cause until February 15, 1966, at which time defendant’s counsel stated that February 15, was “a convenient date insofar as my ability to try the case is concerned”, but continued to urge a continuance on the ground that all of the property was in Kansas and the Missouri court should either continue or dismiss the Missouri action and allow the Kansas court to determine the status of the parties and their rights and interests in the jointly owned Kansas property. The application for continuance or dismissal on that ground was denied.

Evidence on the merits was then heard and the court, being cognizant that Mrs. Sharp’s suit for divorce, which had been filed in Jackson County, Missouri was still pending, stated that the court would “on its motion consolidate” that case with the instant case and stated further “as I understand it this is also the desire of counsel”. Whereupon counsel for Mrs. Sharp stated: “Yes, Your Honor, defendant desires these two cases be consolidated”, and counsel for plaintiff said: “Plaintiff agrees to it”. Next counsel for defendant moved to amend the cross petition which she had previously filed in the instant case “to conform to the evidence” and show that prior to the marriage plaintiff had been convicted of a felony — statutory rape — which fact he had concealed from defendant. The court agreed and the cross petition was amended. In this cross petition, as amended, defendant prayed for a decree of divorce and restoration of her previous name. The finding of the court was against plaintiff on his petition and for defendant on her cross petition. The ground for the divorce was specifically declared by the court to be for plaintiff’s concealment from his wife of the felony conviction. Judgment was entered accordingly and included therein was an alimony allowance of $75 per month.

Counsel for both litigants assert and we agree that an appellate court in a divorce action sits de novo and reaches its own conclusions after a review of the record. O’Neil v. O’Neil, Mo.App., 264 S.W. 61. However, we point out that we do grant a degree of deference to the manifest conclusions of the chancellor as to credibility of witnesses.

Plaintiff and defendant were married on November 24, 1954, in North Kansas City, Missouri. For approximately two years they resided there and then moved to 1012 West 41st Street, Kansas City, Missouri, where they lived together as husband and wife until their separation on December 26, 1963. During those nine years of married life the parties acquired some real estate. A part of this real property was located in Merriam, Kansas, and a part in Kansas City, Kansas. The title was in both of their names. It is undisputed that Mr. and Mrs. Sharp were domiciled in Missouri and were residents of Missouri during the whole period that they lived together, which was-just over nine years. They separated December 26, 1963, and Mrs. Sharp moved from the West 41st Street home. Mr. Sharp says that he remained in that home for a few days and until early in January, 1964, which was approximately 90 days-before he filed the suit for divorce, which is now before us. Plaintiff testified that after he left the 41st Street home early in January, 1964, he lived for about two-months in an apartment in Parkville, Missouri, which was owned by his friend Bill Wilson. Then, according to his testimony he lived in an apartment on Warner Plaza in Kansas City, Missouri until the last of May or the first of June, 1964, when he moved into the home of his parents in Overland Park, Kansas. Bill Wilson said plaintiff lived in his Parkville apartment from January until March, 1964, and that thereafter he had seen him in the place on Warner Plaza. The witness, Raymond Singleton, former fellow employee of plaintiff, testified that he visited Mr. Sharp on Warner Plaza early in 1964, “probably in April”.

Mr. Sharp produced a rent receipt on the Warner Plaza apartment, but it was in the name of “J. Wyatt”. He said he used this alias-{to try to conceal his whereabouts from his wife, who kept “harassing” him. Mr. Sharp described numerous indignities to which he had been subjected by his wife during the period of their marriage. We believe it unnecessary to detail those incidents since the decree went to the defendant and plaintiff has not appealed. Plaintiff admitted that prior to the marriage he had been convicted of statutory rape, a felony, and that he had concealed this fact from his wife.

It is defendant’s contention on the question of jurisdiction that plaintiff, on April 4, 1964, when he filed his petition for divorce, and for some time prior thereto, “lived” in one of the contestant’s jointly owned apartments located at 5203½ Garner Lane, Merriam, Kansas. Deputy Sheriff, Marion Goddard, Johnson County, Kansas, testified that he visited this Garner Lane apartment in an effort to serve “papers” on plaintiff; that he heard someone in the house, but saw no one and was never able to obtain service. Mr. Glen Wallace said the Garner Lane apartment was occupied in March, 1964, and he saw plaintiff drive in and out with his automobile. He also moved furniture out of the place in 1965. The Saner family, neighbors, said plaintiff lived on Garner Lane from the summer of 1963 through June, 1964. Of course, Mr. and Mrs. Sharp were living together in Kansas City, Missouri until December 26, 1963, and those dates cannot be fully correct. Mr. Gerry Callahan, another neighbor, stated that he moved to Garner Lane in January, 1964, and that plaintiff was living there at the time. Mr. Charles Kramer resided at 5210 Garner Lane and as to plaintiff’s living there said: “I wouldn’t know when he moved in or when he moved out, but I would say he was living there approximately along about Easter time in 1964”.

Section 452.050, V.A.M.S., provides that “No person shall be entitled to a divorce from the bonds of matrimony who has not resided within the state one whole year next before filing of the petition, unless the offense or injury complained of was committed within this state, or while one or both of the parties resided within this state; * * * Reading this section alone it might appear that no residence is required if the offense or injury complained of was committed within the state or while one or both parties resided within Missouri. However, Section 452.040, V.A.M.S. states: “The proceedings shall be had in the county where the plaintiff resides, * * * The only Supreme Court case squarely in point seems to be the old case of Kruse v. Kruse, 25 Mo. 68, which was decided in 1857. There the offenses occurred in Missouri and while the parties were Missouri residents. Howevfer, when the plaintiff wife filed suit she was a resident of Kentucky. The Supreme Court in a short opinion ruled that the two sections (now 452.050 and 452.-040, supra), must be considered together and only if plaintiff is a resident of Missouri may he or she obtain a divorce in Missouri. In McConnell v. McConnell, 167 Mo.App. 680, 151 S.W. 175, 176, plaintiff, a resident of New York, alleged his wife had committed adultery in St. Louis and petitioned for divorce in Missouri. The St. Louis Court of Appeals said:

“If the offense or injury complained of was committed within this state, then the plaintiff in the divorce suit need not have resided within the state one whole year next before the filing of the petition. The plaintiff in such case may have resided here less than a year. But the statute nowhere authorizes one who is not a resident of the state to institute suit for divorce in this state under any circumstances, * * *

See also Missouri Law Review, Vol. 24, p. 218 for a full discussion on Divorce Domicile in Missouri.

In the case before us it seems apparent that even though the offenses complained of by plaintiff occurred in Missouri, he must nevertheess have been a resident of this state when his petition was filed. If he was a resident on April 4, 1964, when suit was filed, then clearly he had been a resident for one whole year next before the filing of the petition since admittedly he had resided in this state continuously from November 24, 1954, when the parties were married, until at or shortly after the date of their separation December 26, 1963.

“Residence” or “domicile” is largely a matter of intention, coupled with an act or acts in conformity thereto. Bradshaw v. Bradshaw, Mo.App., 166 S.W.2d 805. It is acquired by an intention to live at a place permanently, or for an indefinite time, coupled with actual bodily presence, though that presence need not be continuous. Mad-sen v. Madsen, Mo.App., 193 S.W.2d 507. In Schneider v. Friend, Mo.App., 361 S.W. 2d 308, syll. 4, it was held that “residence” once established within Missouri and not thereafter changed, is sufficient for maintenance of divorce action, notwithstanding physical absence of resident from the state for a short or long period of time.

The plaintiff, Mr. Sharp, admittedly on January 1, 1964, had been a resident of Missouri for more than nine years. Then he and his wife separated. He testified that for about two months thereafter, he lived in an apartment at Parkville in Missouri and then in an apartment on Warner Plaza in Kansas City, Missouri, until about June, 1964. His claim that he resided at those two addresses in Missouri was corroborated by two other witnesses. The suit was filed on April 4, 1964. If the trial court believed this testimony, then clearly plaintiff was a Missouri resident when suit was filed. He was seen by defendant’s witnesses in Merriam, Kansas and in a property owned jointly by himself and his wife. There is no other evidence which could conceivably be construed as showing an intention on plaintiff’s part to abandon his long time residence in Missouri prior to the time he filed the suit for divorce. The trial court concluded that plaintiff was and had been for the requisite period of time before the filing of the petition, a resident of Missouri, and that it had jurisdiction to try the cause. We believe there was substantial evidence which, if believed, justified such conclusion. We are in accord with it and defendant’s assignment of error for lack of jurisdiction of the subject matter is denied.

Defendant’s other alleged error is that the Missouri court should have dismissed the divorce action or at least have continued it until the Kansas court finally determined Mrs. Sharp’s Kansas suit for separate maintenance and for a determination as to the respective interests of Mr. and Mrs. Sharp in and to their jointly owned Kansas real estate. It appears that there never was anj personal service on Mr. Sharp with respect to this Kansas suit. Appellant says the doctrine of forum non conveniens dictates that the Missouri action be stayed pending final decision by the Kansas tribunals because “trial is practical and justice to the parties can be accomplished” only in the Kansas forum. In support of her contention appellant invites our attention to the case of Elliott v. Johnston, 365 Mo. 881, 292 S.W.2d 589. In that case all the parties were residents of Kansas and the automobile collision which was the subject matter of the litigation occurred in Kansas. The Missouri court dismissed the action brought in Missouri, applied the doctrine of forum non conveniens and held that Kansas was the natural and proper location for the litigation. That case is not our case. Appellant also invites our attention to Wright v. Wright, In Banc, 350 Mo. 325, 165 S.W.2d 870, as authority for the proposition that courts frown on “attempts to manipulate residence in order to obtain a favorable divorce result”. In that case the parties were residents of Missouri and their marital rights had been determined by the Missouri courts in a separate maintenance suit. Thereafter the husband went to Nevada for the purpose of obtaining a divorce and failed to reveal that the matters had already been decided in Missouri. His motion to supplant the Missouri decision by the Nevada divorce decree was denied. We see no similarity between that case and the one before us. In the instant suit the parties were, at the time it was filed, both residents of Missouri. Mrs. Sharp herself filed a suit for divorce'm Jackson County, Missouri. She consented and requested that her suit for divorce be consolidated with plaintiff’s suit. She also filed a cross petition responsive to her husband’s Missouri suit and after the evidence had been heard, successfully moved to amend her cross bill by charging Mr. Sharp with concealing from her the fact that he had been convicted of a felony. Therein she also asked' for a divorce. She was granted a decree of divorce and judgment of $75 per month as alimony. Now she asks that this Missouri litigation and judgment be either expunged or held in abeyance so that she may have her case weighed in the scales of justice by the Kansas courts. More particularly, she desires that her suit for separate maintenance and her claim of complete title to all of the Kansas real estate be litigated in the courts of Kansas.

The trial court concluded that on April 4, 1964, when Mr. Sharp's suit for divorce was filed he was a resident of Missouri and had been for more than one whole year. We have reached the same conclusion. Both parties at that time had lived in Missouri for more than nine years and up to the date of the separation. Certainly any marital transgressions during the active life of the marriage had been committed within this state. Missouri was the only state where jurisdiction existed. We know of no law, reason or rule, and counsel has cited us to none, requiring that marital litigation be conducted in that state where the parties jointly own real estate. Marriage is a personal relationship and all forums, so far as we know, predicate jurisdiction upon the residence or domicile of the parties — none upon the situs of their real estate holdings. Appellant says only the Kansas courts can “make a judgment on the merits of the case affecting Kansas property”, whereas in truth and fact a Missouri court having jurisdiction of the divorce action with personal service, may inquire fully into the financial position of the spouses, what property they own, wherever it may be located, and may, as was done here, enter a judgment for alimony. We rule this last point against appellant.

The judgment is affirmed.

SPERRY, C., concurs.

PER CURIAM:

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

HOWARD, P. J., CROSS and BLAIR, JJ., and FRANK D. CONNETT, Jr., Special Judge, concur.


author: CROSS, Judge.

text:
    UNIVERSAL C. I. T. CREDIT CORPORATION, Respondent, v. Ralph W. TATRO, Appellant.
    No. 24543.
    Kansas City Court of Appeals. Missouri.
    June 5, 1967.

      Richard L. White, Kansas City, for appellant.
    William C. Paxton, Independence, for respondent.
   CROSS, Judge.

Defendant has appealed from an adverse judgment of the circuit court awarding plaintiff loan company $1,437.44 as actual damages sustained by reason of defendant’s alleged fraud practiced to procure a loan, and punitive damages in the amount of $500.00.

The case was tried upon the theory pleaded by plaintiff in its second amended petition to the effect that defendant went to plaintiff’s office and applied for a loan; that as a condition precedent to granting the loan plaintiff required, in addition to defendant’s own signature, that he obtain the signature of his wife, Billie Tatro, on certain necessary loan papers, including a promissory note, and deliver those documents to plaintiff; that plaintiff furnished the necessary loan papers to defendant who took them home with him from the loan office for that purpose; that defendant later returned and delivered the papers to plaintiff purportedly bearing the signature of Billie Tatro and affixed thereto his own signature, whereupon he received from plaintiff the monies called for by the promissory note; that in truth and fact the purported signatures of Billie Tatro on the loan documents were not genuine, but were forgeries; that defendant delivered the promissory note and accompanying loan papers to plaintiff with knowledge that the purported signatures of Billie Tatro thereon were forgeries; that he “wrongfully, maliciously and intentionally submitted them to the plaintiff to induce plaintiff to loan said defendant, Ralph W. Tatro, this money which was in fact loaned by said plaintiff all to their loss”.

Defendant Ralph W. Tatro testified both as a witness called by plaintiff for cross examination and on his own behalf. The trial court itself subjected him to a lengthy, critical examination. The substance of his testimony is here set out: Sometime prior to October 3, 1961, defendant and Billie Tatro, who at that time was, but no longer is his wife, desiring to purchase a carpet, went to the office of plaintiff to apply for a loan for that purpose. They were informed by plaintiff the loan would be forthcoming. Later, on or about October 3, 1961, defendant returned to plaintiff’s office, unaccompanied by his wife, to complete the loan arrangements. Plaintiff wanted defendant’s wife present to complete the loan. A “gentleman” in plaintiff’s office, on its behalf, called and talked to Billie Tatro at her place of employment and learned she was unable to leave her work and come to the loan office. Then plaintiff’s representative agreed that defendant could sign the papers and take them home with him for his wife to sign and informed defendant that when he brought them back signed he would receive “the money represented by this loan”. The papers were given to him in an envelope. He took them home and presented them to Billie Tatro for her signature, but she informed him she was leaving the house at that time but would sign them later and give them to him next morning. The next morning she threw “the papers” on a table with the statement, “Here’s your papers back”. The papers were still in the envelope. Defendant didn’t see her sign the papers, didn’t look at them after he picked them up, or otherwise identify her signature before returning them to plaintiff’s office. He claimed he had already signed them and never saw them again until produced in court. He “picked up the envelope, took it down and gave it to the Universal C. I. T. Company”. He “guessed” that somebody there must have looked at the papers because “they give me the check”. During cross-examination of defendant, the loan papers were identified as Plaintiff’s Exhibit 1, the promissory note (and chattel mortgage) in the principal sum of $2040.00, dated October 3, 1961; Plaintiff’s Exhibit 2, a carbon copy of Exhibit 1; Plaintiff’s Exhibit 3, a financial statement dated October 3, 1961; Plaintiff’s Exhibit 4, a list of property owned by borrower dated October 3, 1961. Defendant admitted he had signed all four documents. Concerning the purported signatures of Billie Tatro he testified:

“Q. Now, are you acquainted with the signature of your wife? A. Yes.
Q. And is it your testimony that the signature as it appears on these instruments, is the signature of your wife as you know it to be? A. No, I wouldn’t say that. It looks more like a child’s signature to me, unless she was drunk at the time she signed it.
Q. In other words, it really doesn’t look like her signature ? A. Right.
Q. Well, why did you tender it back to Universal C. I. T. as her signature? A. I never even looked at it, they were in the enevelope and I took it down there and they give me the check for it. From the time I took those home until the time it come up in court before, I had never seen _ ,, those papers again.
Q. You are not denying that they gave you the papers and said to get your wife’s signature on them, and you brought these papers back with this signature on them, but this signature doesn’t look like your wife’s signature, and they give you the money ? A. Right”.

William Vornold, plaintiff’s branch manager of Universal C. I. T. testified that defendant came to its office on October 3, 1961, in the early part of the morning, and arranged for a loan to buy a carpet. No person accompanied him. Necessary loan papers were given to him with accompanying instructions that he would have to take the papers out for his wife to sign and return them, and that after the signatures were affixed the loan would be completed, and he could have his check. Defendant didn’t sign the papers at that time. He left the office, taking the documents with him, and brought them back late in the afternoon of the same day. He signed them after turning them over to plaintiff. Vornold stated they were not out of the office overnight. He further stated that Mr. and Mrs. Tatro did not come to plaintiff’s office and discuss the October 3d loan at any time prior to that date. The witness also testified that it was normal practice to send loan papers out for people to sign if they have a previous account with the plaintiff because you can verify the signature. Plaintiff had a previous account with Mrs. Tatro. In May, 1962, Vornold had a “discussion with him (Tatro) . about the papers”. At that time Tatro said they were signed when he picked them up at home to bring back to the loan office, but that he didn’t know who signed them. In July, 1962, Tatro was in the loan office discussing the transaction. On that occasion he stated that “it was her signature” (on the loan papers).

Billie Tatro (Pinet), defendant’s former wife, was called as a witness by plaintiff. She denied having signed any of the loan documents (Plaintiff’s Exhibits 1, 2, 3 and 4), denied that she had ever signed any credit application, chattel mortgage, or any kind of note with Mr. Tatro to Universal C. I. T., and denied that she had ever been in its office.

Defendant was adjudged a bankrupt on a date undisclosed by the record but subsequent to October 3, 1961, and thereafter, on July 11, 1963, received a final discharge in bankruptcy. Defendant had listed in his bankruptcy schedule of liabilities the October 3, 1961 promissory note payable to plaintiff, which defendant had himself admittedly executed. It was stipulated by the parties that the unpaid principal balance of that note was in the amount of $1,437.-20.

At the conclusion of the evidence it was stipulated by and between the parties that the court submit to a handwriting expert the handwritings in question claimed to be the signatures of Billie Tatro, together with agreed authentic specimens of her signature, to determine whether the purported signatures on the former were her true signatures. Pursuant to this stipulation the trial court designated Mr. R. H. Burnup, a certified graphoanalyst, as a handwriting expert to examine the signatures and render his opinion on the disputed question. In his report to the court, duly filed, he expressed his opinion that the writings on plaintiff’s Exhibits Nos. 1, 2, 3 and 4 purporting to be the signatures of Billie Tatro are not, in fact, her signatures.

The trial court made findings of fact as follows:

“That Ralph W. Tatro applied to plaintiff for a total loan of $1,655.32, including interest; that said promissory note was dated October 3, 1961. That as a condition precedent to the loan said Ralph W. Tatro agreed to have his wife, Billie Tatro, sign this promissory note and took it from the plaintiff’s office for this purpose; that he brought it back to plaintiff purportedly signed by Billie Tatro, but in fact, Ralph W. Tatro knew that it was not her signature and knowingly tendered this false signature as being genuine to plaintiff to secure said loan with intent that it should be acted upon by plaintiff in a manner reasonably contemplated by said defendant by paying out the amount of the proposed loan; that plaintiff being ignorant of the fact that the signature purportedly being that of Billie Tatro was false, relied on its truth and defendant’s representations, having a right to rely thereon and that plaintiff suffered consequent and proximate injury in the amount of $1,437.44, the unpaid balance of said promissory note.
II
“That Defendant Ralph W. Tatro received his final discharge in bankruptcy July 11, 1963, in the United States District Court for the Western District of Missouri under case #27925; that plaintiff’s debt was listed in said defendant’s schedule therein and that plaintiff received proper notice thereof but that this debt as found in Paragraph I above falls within Section 17, Paragraph (2) of the Bankruptcy Act as a debt not affected by a discharge; that the liability of $1,-437.44 arose by defendant’s obtaining money or property by false pretenses or false representation from the plaintiff herein as found in Paragraph I above, and that this debt was not discharged in bankruptcy”.

Judgment was rendered in accordance with the foregoing findings.

In a single point defendant insists that “The Court Erred in Entering a Judgment in Favor of the Plaintiff on Count II of the Plaintiff’s Petition, Based upon Fraud, When the Evidence Undisputedly Showed Respondent Did Not Rely upon the Appellant’s Misrepresentation, Had No Right to Rely Thereon, and Was Not Ignorant or its falsity", in argument of this point, defendant preliminarily reminds us of the necessary constitutive elements of actionable fraud as they are stated in Wolf v. Kansas City Tire & Service Co., Mo.App., 257 S.W.2d 408, as follows: (1) a representation, (2) its falsity, (3) its materiality, (4) the speaker’s knowledge of its falsity or ignorance of its truth, (5) his intent that it should be acted on by the person and in the manner reasonably contemplated, (6) the hearer’s ignorance of its falsity, (7) his reliance on its truth, and (8) the right to rely thereon. A ninth element, to-wit, the hearer’s “consequent and proximate injury” is recognized by this court in Williams v. Miller Pontiac Company, Mo. App., 409 S.W.2d 275, citing 37 C.J.S. Fraud § 3, p. 215, and by the Supreme Court in Powers v. Shore, Mo.Sup., 248 S.W.2d 1.

As appears earlier herein the trial court has found that all necessary elements of actionable fraud have been established in this case. Of particular significance is the finding that “Ralph W. Tatro knew that it was not her signature and knowingly tendered this false signature as being genuine”, despite defendant’s disclaimer of such knowledge. The trial court has thereby demonstrated its view that Tatro was not a credible witness. As required by Civil Rule 73.01, V.A.M.R., in this non-jury case we give due regard to the opportunity of the trial court to judge of the credibility of the witnesses, inasmuch as there is sharp conflict in the testimony on vital issues. Both in deference to the trial court’s exercise of that prerogative, and by reason of our independent views as to the credibility, weight and probative effect of the evidence, we approve the findings of fact made by that court and adopt them as our own findings herein. The following brief comment will be sufficient to identify six of the essential elements of fraud that have been so clearly established defendant makes no contention otherwise: (1) Defendant’s act of returning the loan papers to plaintiff with the name “Billie Tatro” inscribed thereon was a representation that his wife had in fact signed them. A representation is not confined to words or positive assertion; it may consist as well of deeds, acts or artifices calculated to mislead another. Jones v. West Side Buick Auto Co., 231 Mo.App. 187, 93 S.W.2d 1083. (2) The falsity of defendant’s representation lies in the fact, as found both by the trial court and this court, that the purported signatures of Billie Tatro on the loan documents were false and were written by some person other than Billie Tatro. The evidence does not permit a contrary finding on this question. Billie Tatro denies that she signed the loan papers. Defendant equivocates on the issue but admits that “it really doesn’t look like her signature”. The handwriting expert appointed by the court by agreement of the parties condemns the signatures as false. The issue is thus foreclosed. It is not necessary that we inquire or speculate as to what person affixed the false signatures. (3) The materiality of the representation is attested by the circumstance that the loan was conditioned upon signature of the loan instruments by defendant’s wife. (4) It is the finding, both of the trial court and this court, that defendant had knowledge of the falsity of his representation. In any event, under his own testimony he was ignorant of its truth. (5) It was defendant’s intent it should be acted upon by plaintiff and in the manner reasonably contemplated, since no other reassonable purpose can be ascribed for delivering purportedly executed loan documents than to induce completion of the loan applied for and to obtain its proceeds. * * * (9) Plaintiff has sustained consequent and proximate injury in the sum stipulated by the parties.

We now consider defendant’s specific complaints that three necessary elements of a cause of action for fraud have not been proven. Defendant first complains there is no proof that plaintiff relied on defendant’s misrepresentation. In fact, says defendant, it is affirmatively shown by the evidence that plaintiff did not rely thereon. The whole basis of that argument is the testimony of plaintiff’s branch manager that it was normal practice to send loan papers out for people to sign if they have had a previous account, because their signature can be verified, and that plaintiff had a previous account with Mrs. Tatro. The only significance of that testimony is that the possession of a valid sample signature by Billie Tatro may have afforded plaintiff opportunity to compare therewith the signatures on the loan instruments defendant returned to the loan office. There is no circumstance mentioned in evidence reasonably permitting an inference that any such comparison was actually made. The fact there is no direct evidence on behalf of plaintiff that it relied upon the misrepresentation does not, of itself, militate against the sufficiency of the evidence to establish that element of the case. The fact of reliance does not require direct proof and it may be inferred from all the facts and circumstances in the case. Jones v. West Side Buick Auto Co., supra. In this case plaintiff agreed to loan defendant money on condition he obtain his wife’s signature on necessary documents. Those instruments were entrusted to defendant and he took them away from plaintiff’s office for that purpose. The evidence shows that when he later returned and turned the papers over to plaintiff’s employee he received the loan proceeds without further discussion or ceremony. As we said above, there is nothing in the evidence to indicate the signatures were questioned or compared. The loan papers were “given to the discount clerk to prepare the check and he (Tatro) was given the money at that time”. The reasonable inference from these circumstances is that plaintiff accepted the purported signatures of defendant’s spouse as genuine in reliance upon defendant’s false representation. Our findings accord with the inference.

Defendant next argues it has not been established that plaintiff had the right to rely on his misrepresentation of fact. In urging this proposition defendant directs attention to general rules our courts have stated to the effect that where the parties to a transaction are on equal footing and the means of knowledge are equally available to both parties, a misrepresentation or erroneous statement of fact is not actionable; that where a party makes his own investigation he may not rely on misrepresentations of another; and that courts will not protect those who, with full opportunity to do so, will not protect themselves. This court has given due recognition to those broadly stated generalizations. In Cantley v. Plattner, 228 Mo.App. 411, 67 S.W.2d 125, we said, “Ordinarily, it is true that neither law nor equity will afford relief for false representations where the parties stand upon an equal footing or where the subject-matter in dispute is equally known to both; and, if one trusts to representations not calculated to impress a person of ordinary prudence, or neglects means of information within easy reach, he should suffer the consequences.” However, we qualified the foregoing by further stating; “But such rule has no application where a distinct and specific representation is made to be acted upon or for the purpose of inducing action and which has induced action. (Citing Union National Bank v. Hunt, 76 Mo. 439; Cottrill v. Krum, 100 Mo. 397 loe. cit. 404, 13 S.W. 753, 18 Am. St.Rep. 549; Judd v. Walker, 215 Mo. 312-loe. cit. 328, 114 S.W. 979; Kerr on Fraud and Mistake, pp. 80, 81; Conroy’s, Inc., v. Ratz (Mo.App.), 14 S.W.2d 465). In the case of Judd v. Walker, supra, the court said: ‘We might add here that the general doctrine laid down in the books as elementary is that the doctrine of notice and means of knowledge has no application where distinct and positive representations of fact have been made, have been relied upon and have induced action.’ * * * A representation may as well mislead even 'where the means of knowledge are directly at hand as where they are not; and that one may act upon positive representations of fact notwithstanding the fact that the means of knowledge are open to him, if the representation is of such character as to induce and does induce action, seems to be well-settled law. Conroy’s, Inc., v. Ratz (Mo. App.) 14 S.W. (2d) 465. Under such circumstances, one later may not shield his fraud behind the alleged negligence of the other, where such negligence, if any, was caused by his misconduct, as there was evidence in this case tending to show. Conroy’s, Inc., v. Ratz, supra”. The foregoing principles enunciated in Cantley v. Plattner were reaffirmed by this court in Wright v. Weaver, Mo.App., 231 S.W.2d 857 and in Meyer v. Brown, Mo.App., 312 S.W. 158. We accept these authorities as expressive of the law applicable to the instant question. Therefore, it is of no consequence in this case that plaintiff may have had the means at hand by which it might have discovered the falsity of the signatures in question. Under the evidence there can be no question of the fact that defendant’s delivery of the loan documents, with signatures thereon purport- . ing to be those of his wife, was a distinct and positive representation of fact that such signatures were genuine, and that the representation was made to induce, and did in fact induce plaintiff to complete the loan. Hence we are constrained to rule that the disputed element of “reliance” has been established.

Defendant finally claims there is lack of proof to establish, as an essential element of fraud, that plaintiff was ignorant of the falsity of defendant’s representation, or, stated in language sometimes used by the courts, that plaintiff reasonably believed the misrepresentation to be true. Defendant in fact takes the position that the evidence directly proves that plaintiff was not ignorant of the falsity of the representation, which is to say, in effect, that the evidence directly proves that plaintiff knew the loan documents returned to it by defendant bore false signatures. The record does not support defendant in this contention. Under all the evidence the only reasonable conclusion to be reached is that the plaintiff believed the signatures were genuine. Reasonable minds reject the concept that plaintiff would have made the loan had it known the signatures were forged.

The trial court’s award of actual damages is in an amount the parties have agreed by stipulation to be the unpaid balance of the note. It therefore meets with this court’s approval. We are not disposed to disturb the trial court’s award of punitive damages. Punitive damages are allowable in a case of fraud and deceit such as this where the representation is characterized by legal malice. In speaking of legal malice, our courts have in mind “simply the accepted theory of the intentional doing of a wrongful act without just cause or excuse, and not the necessity for the showing of any spite or ill will, or that the particular act was willfully or wantonly done.” Brown v. Sloan’s Moving & Storage Co., Mo., 296 S.W.2d 20; Jones v. West Side Buick Auto Co., 231 Mo.App. 187, 93 S.W.2d 1083, and Luikart v. Miller, Mo.Sup., 48 S.W.2d 867.

Finally, we specifically approve and reaffirm the trial court’s finding that the defendant’s discharge in bankruptcy has not released him from the debt on which the judgment herein was founded. U.S. C.A., Title 11, Bankruptcy, Sec. 35(a) (2); Burkhart v. Industrial Transportation Co., Mo.App., 249 S.W. 969.

The judgment is affirmed.

All concur.

      I. See Consumers Cooperative Association v. McMahan, Mo., 393 S.W.2d 552; Brown v. Sloan’s Moving and Storage Co., Mo., 296 S.W.2d 20; Paine v. Albany Insurance Co., Mo.App., 299 S.W.2d 897; Hanson v. Acceptance Finance Co., Mo. App., 270 S.W.2d 143.

      . Also see: Bertram v. Kempster, Mo. Sup., 216 S.W.2d 494; Kearnes v. Sparks, Mo.App., 260 S.W.2d 353; Shechter v. Brewer, Mo.App., 344 S.W.2d 784,-Ash v. Wiley, Mo.App., 46 S.W.2d 897; Rabenau v. Harrell, 278 Mo. 247, 213 S. W. 92; Monsanto Chemical Works v. American Zinc, Lead and Smelting Co., Mo.Sup., 253 S.W. 1006; Hutchings v. Tipsword, Mo.App., 363 S.W.2d 40; Mc-Ghee v. Bell, 170 Mo. 121, 70 S.W. 493, 59 L.B.A. 761; Selle v. Wrigley, 233 Mo. App. 43,116 S.W.2d 217.


author: SPERRY, Commissioner.

text:
    SOUTHWESTERN BELL TELEPHONE COMPANY, a corporation ot al., Plaintiffs, v. CROWN INSURANCE COMPANY, a corporation, Defendant, First National Bank of Clayton, Garnishee, the South East National Bank of Chicago, Illinois, Intervenor, Appellant.
    No. 24530.
    Kansas City Court of Appeals. Missouri.
    June 5, 1967.

      William R. Dorsey, Clayton, John L. Hearne (Intervenor), Jefferson City, for appellant.
    Charles H. Howard, Hendren & Andrae, Jefferson City, for respondent.
   SPERRY, Commissioner.

This case originated upon the filing of a suit by attachment by plaintiffs against Crown Insurance Company, defendant. Plaintiffs garnisheed the First National Bank of Clayton, Mo., hereinafter referred to as garnishee, claiming ownership of a $5,000.00 certificate of deposit together with accrued interest, issued by garnishee to defendant Crown. The South East National Bank of Chicago intervened, claiming the certificate of deposit. Plaintiffs counterclaimed against intervenor claiming damages because of intervenor’s wrongful refusal to pay drafts drawn on Crown and payable to plaintiffs. Eventually, the proceeds of the certificate of deposit were paid to the clerk of the circuit court of Cole County, upon order of the circuit court. Crown Insurance Company went into receivership in West Virginia, and failed to plead, and disappeared from the case. The issues .presented were tried by the court between", plaintiffs and’intervenor. Inter-venor' appealed from a judgment denying its petitiorv-and ordering garnishee to pay plaintiffs" $5,000.00, the proceeds ■ of the certificate' of deposit, plus accrued' interest of $200.00, $1200.70 representing other funds held by garnishee on deposit to the credit of defendant, and allowing garnishee $200.00 as attorneys’ fees. Plaintiffs’ counterclaim was denied and it did not appeal.

Plaintiffs’ claim against defendant was based on insurance claims for losses, for which drafts were drawn by defendant and delivered for payment to plaintiffs’ by in-tervenor. These drafts were returned unpaid. Plaintiffs filed suit on March 18, 1964. Garnishee was served on March 19, and answered on April 25, 1964, admitting having in its custody $1200.70, being property of defendant. No mention was made of certificate of deposit 014. In later amended answers, garnishee admitted having in its custody funds represented by certificate of deposit 014, but made no mention of its having been notified of assignment of this certificate to intervenor. In its amended answer, filed October 16, 1964, garnishee stated that it had verbal notice from inter-venor, on February 26, 1964, of the assignment, which verbal notice was confirmed by letter on March 23, 1964.

The pertinent provisions of the certificate of deposit 014, on its face, are as follows:

“THE FIRST NATIONAL BANK OF CLAYTON CLAYTON (St. Louis) MO.

$5,000.00 No. 014

June 7, 1963

Crown Insurance Company has deposited in this bank

5000 dols 00 cts

Payable to Themselves or assigns, in current funds on Return of this Certificate 12 months after date with interest at 4 per cent per annum, payable, semi-annually.

(Signed) John B. Mitchell, V.P. authorized signature

Additional provisions on reverse side”.

On the reverse side appears the following: “ASSIGNMENT

(“Effective only when entered on books of this bank)

FOR VALUE RECEIVED: I/WE HEREBY SELL, ASSIGN AND TRANSFER UNTO CROWN INSURANCE COMPANY

(Signed) William R. Dorsey Treas. Name and Address

(Signed) THEO M. EWING Pres.

FOR DEPOSIT TO THE SOUTH EAST NATIONAL BANK CROWN INSURANCE COMPANY (Signed) THEO M. EWING Clayton 5, Missouri

(Typed) THEODORE M. EWING, PRES.”

One of plaintiffs’ chief contentions is that garnishee had no notice of intervenor’s claim of ownership of the certificate prior to service on it of notice and summons in garnishment, on March 19, 1964. They contend that, by reason thereof, they are entitled to receive the proceeds of the certificate on their garnishment, and that failure to give such notice prior to the filing of this suit is evidence that no assignment to inter-venor was made prior thereto.

The only notice given to garnishee of in-tervenor’s claimed ownership of the certificate, prior to March 19, 1964, was in a verbal conversation had between Mr. Wa-hala, for intervenor, and Mr. Mitchell, vice-president of garnishee. Plaintiffs say that testimony may not be considered.

Under the facts in this case we think it is immaterial to any issue herein as to whether or not garnishee was notified of interven- or’s claim of .ownership of the certificate of deposit 014, before March 19, 1964. The documentary evidence in this case is overwhelmingly to the effect that defendant sold and transferred certificate 014 to is-tervenor on December 31, 1963, for a valuable consideration; and it was not contradicted by any substantial evidence, that this certificate of deposit, together with other securities, was pledged to intervenor by defendant, June 13, 1963, to secure a large loan the proceeds of which it received and used. It also appears that, in order to secure the loan, this certificate of deposit and other securities were assigned to intervenor long prior to the institution of this lawsuit, and that the proceeds were used to repay the loan heretofore mentioned. This certificate of deposit was eventually transferred to intervenor’s portfolio of owned investments. This evidence was not contradicted by any substantial evidence in the record.

In Cusick v. Cusick, Mo.App., 201 S.W. 2d 437, 440, we said that the liability of a garnishee to a plaintiff is measured by its liability to the defendant.

In 10 Am.Jur.2d, Banks, Sec. 457, p. 427, appears the following:

“NATURE OF CERTIFICATE; NEGOTIABILITY, ASSIGNABILITY, and CONSTRUCTION. While a certificate of deposit may, under special circumstances, be considered nothing more than a mere receipt, in its usual and or- • dinary form it contains the elements of a promissory note, rather than of a mere receipt, and in general has that legal effect. The essential element of a promissory note, namely, an unconditional promise to pay a certain sum of money absolutely, is present, and the instrument is in general governed by the same rules that control instruments of that character. Properly indorsed, it is widely regarded as a negotiable instrument transferable in the same manner and with the same results as other negotiable paper. More definitely, certificates of deposit issued by bankers are without doubt negotiable in the sense that they may be transferred by indorsement so as to authorize a transferee to maintain an action thereon in his own name, and the prevailing view is that a certificate of deposit written in full and regular form, is a promissory note with all of the incidents of negotiability, and as such negotiable. Such a certificate is deemed to be a negotiable instrument within the purview of the Negotiable Instruments Law and the Uniform Commercial Code. Consequently, a bona fide purchaser for value, before maturity, and without notice of equities, is protected to the same extent as. an innocent holder of other negotiable paper would be. Furthermore, even though the language of a particular certificate of deposit renders it non-negotiable, it may nevertheless be assignable so as to confer the rights of the payee upon the assignee.” (Emphasis ours.)

In 6 Am.Jur.2d Attachment and Garnishment, sec. 460, pp. 881-882, it is said:

“GENERALLY. The general rule is that an attachment or garnishment is binding upon the attached or garnished property to the extent of the defendant’s interest therein, but not to any greater extent. It is accordingly said that the attaching or garnishing creditor stands in the shoes of the defendant and is in no better position with regard to the attached or garnished property or debt than the defendant. * * *

In Hendrickson v. Trenton National Bank, 81 Mo.App. 332, 335, the court said:

“1. On the merits of this case the sole question is, who had the better title to the money which Collier, treasurer of the Odd Fellows’ lodge, owed McDaniels. Plaintiff’s right is based on the garnishment process sued out from his judgment against McDaniels, while the Trenton Bank rests its claim upon the order or assignment made to it before service of the writ of garnishment. The trial court held the superior right to belong to the bank, and in our opinion this decision was clearly right. The claim or account which the debtor McDaniels had against Collier, the lodge treasurer, was a mere chose in action and which he had a right to, and in fact did assign to the bank as payment or security of the claim it held. This assignment was made prior to the garnishment and must therefore be treated as carrying a superior right to the as-signee. By virtue of the garnishment the plaintiff has no better right than Mc-Daniels had — he stands in McDaniels’ shoes. And since the assignment was good as to McDaniels it is likewise as to the plaintiff. There was no need of notice even to Collier as to the assignment —though it was given, and that, too, before service of garnishment. Smith v. Sterritt, 24 Mo. 260; Knapp, Stout & Co. v. Standley, 45 Mo.App. 264.
“In the first cited case it was held, that an assignee of an account, assigned for value previous to a garnishment by virtue of an execution against assignor, has a superior right to the plaintiff in the execution, although the assignee may not have given notice of the assignment previous to the garnishment”. (Emphasis ours.)

In Smith v. Sterritt, supra, 262, the supreme court said: “ * * * yet, as between the owner of an account and his as-signee, the assignment is valid; and one who comes in by operation of the law after the assignment cannot occupy a more advantageous position than he under whom he claims”. (Emphasis ours.) It was further held that the above is true even if notice of the assignment was not given prior to service of summons in attachment.

In Phillips v. Alford, Mo.App., 90 S.W.2d 1060, 1069, we said (Bland):

“[9,10] It is admitted that these certificates of deposit were negotiable in form and, in this state, certificates of deposit in the ordinary form are, in substance and legal effect, promissory notes (7 C. J., p. 647; Dickey v. Adler, 143 Mo. App. 326, 127 S.W. 593) and a promissory note is transferable without endorsement”.

In 52 A.L.R., page 109, it is said that the authorities are divided on the question of the necessity of giving notice to the garnishee of assignment prior to service of process. We are concerned here only with the law of Missouri on this subject. It is that failure of proof of prior notice does not affect the rights of an assignee if the assignment was valid and made prior to service of summons in garnishment.

It is not necessary that we rule on the negotiability of certificate of deposit 014. The condition regarding the assignment, as printed on the reverse side of the certificate, does not render the certificate unassignable. The only effect it can have is to give garnishee some right; but the garnishee asserts no right or interest in the certificate and has voluntarily paid the proceeds into the registry of the court. The sole question before us is: Who has the prior claim on the money? We hold the in-tervenor is the lawful owner of the proceeds of certificate of deposit 014, and that it acquired full ownership thereof, long prior to the filing of plaintiffs’ lawsuit. If defendant, Crown, owned no interest in the certificate of deposit when the garnishment issued, there was nothing upon which the court’s judgment in this case could operate.

We are required to review this case both upon the law and the evidence as in suits of an equitable nature. The judgment may not be set aside unless clearly erroneous, and due regard must be given to the opportunity of the trial court to judge the credibility of the witnesses. No findings of fact issues were requested or made. Under the rule it is deemed that all fact issues have been found in accordance with the result reached. Rule 73.01, V.A.M.R.

One of the vital fact issues in this case, that of the actual assignment of the certificate of deposit to intervenor, is established by the certificate itself, a photostatic copy of which is shown in the record. There is no contention made that the assignment was forged, that it was made by reason of fraud or mistake, or that it is, for any other reason, invalid. The certificate, as assigned, was in the possession of intervenor at the trial when it was produced and put in evidence. There is no evidence tending to prove that plaintiffs had any interest in it, that they asserted any claim upon it, or that intervenor had any knowledge of any such claim, if there was one, prior to the attachment, March 19, 1964. Any finding to that effect, if it had actually been made, would not have been supported by a scintilla of evidence.

The only witness who testified as to the facts concerning when, and the circumstances under which, the assignment was executed came from Mr. Wahala, an officer of intervenor. He identified records of his bank which were admitted into evidence without objection. Neither his testimony or the validity of the records is challenged in any respect.

Mr. Wahala stated that he was in the lending and investment department of inter-venor ; that he managed the Crown loan account. He identified intervenor’s exhibit 1 as being the original loan ledger sheet of Crown, together with a photostatic copy thereof. He testified to the effect that, on June 13, 1963, intervenor loaned Crown $87,125.00 which was secured by certificates of deposit to Crown, in various banks, and by other securities; that this loan was paid in full on December 31,1963. He identified exhibit 2 as being the original ledger liability sheet of the checking account of Crown, from November 30 to December 31, 1963. He identified exhibits 3 and 4 as being copies of original credit tickets wherein intervenor credited Crown’s checking account in the amount of $86,000.00 (plus interest).

He identified exhibit 5 as an original ledger debit ticket indicating that inter-venor acquired and put in its portfolio $60,000.00 worth of certificates .of deposit, identified by names of the various banks listed. Exhibit 6 was identified as the original copy of the debit ticket wherein inter-venor charged Crown’s account $87,337.50, in full payment of loan No. 98523, which was secured by certificates of deposit previously mentioned. These exhibits were admitted into evidence with comment from plaintiffs, “no objection”. The witness further stated that intervenor acquired ownership of certificate of deposit 014, as stated, December 31, 1963. It had it in its custody, at the trial, but it was not marked since it was agreed that a copy would be used. He stated that exhibit 5, a December 31, 1963, item, shows that certificate of deposit 014 was placed in intervenor’s portfolio on that date, and that Crown’s account was credited on that date with $5,000.00, plus accrued interest, on account of the certificate. Mr. Wahala identified exhibit 7 as being a copy of a letter mailed to garnishee March 23, 1963, notifying it that in-tervenor was the owner of certificate of deposit 014 (and others) having acquired it from Crown.

Mr. Wahala was cross examined but no new facts of significance were developed and intervenor rested. Thereupon plaintiffs announced that their “issue of ownership of certificate 014 rests also, on the record made”, and since the judgment on plaintiffs’ counterclaim was for intervenor and no appeal was taken, we do not deem it proper to set out that evidence.

It is an indisputable fact that, when this suit was instituted, intervenor had physical possession and control of the certificate which had been indorsed by Crown and delivered to it. As to the exact date that it acquired full ownership, the only evidence thereon came from the testimony of Mr. Wahala and from the documents produced from the bank files. There was no evidence to the contrary. There was no evidence contradictory for the court to weigh in order to render a judgment for plaintiffs. In Williams v. Cass, Mo.App., 372 S.W.2d 156, 158, the court considered an appeal from an order granting a new trial and said: ‘ * * * (P)laintiff has no right to a new trial when the evidence in her favor is not sufficient to take the case to the jury. * * * A failure of evidence to support a verdict for plaintiff renders a case dead, and it cannot be resurrected by a motion for a new trial.' Payne v. Reed, 332 Mo. 343, 347, 59 S.W.2d 43, 44(3) ; Rose v. Thompson, 346 Mo. 395, 401, 141 S.W.2d 824, 828. ‘To grant a new trial, on the ground that the finding was against the weight of the evidence, would be arbitrary if there was no evidence to weigh.’

Generally, a court or jury may refuse to believe certain testimony. However, in this case, there was no evidence tending to contradict intervenor’s evidence to the effect that it had owned the certificate of deposit since December 31, 1963. There is nothing in the record that tends to raise a doubt as to the truth of such evidence, or that it was incredible or unbelievable. The judgment is against the overwhelming weight of the evidence and is clearly erroneous.

The judgment is reversed and the cause is remanded with directions that a new judgment be entered ordering Guy M. Sone, Circuit Clerk, to pay out of funds in his custody $1,000.70 to plaintiffs; $5,200.00 to intervenor; and $200.00, as a reasonable attorney’s fee, to garnishee, First National Bank of Clayton, Mo.

MAUGHMER, C., concurs.

PER CURIAM.

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

HOWARD, P. J., and CROSS, J., concur.

BLAIR, J., not participating.