author: TITUS, Judge.

text:
    Tom ALEY, d/b/a Ozark Underground Laboratory, Plaintiff-Appellant, v. HACIENDA FARMS, INC., a corporation, and John Hunter, an Individual, Defendants-Respondents.
    No. 10747.
    Missouri Court of Appeals, Southern District, Division One.
    June 27, 1979.

      Gary W. Allman, Cantwell & Allman, Branson, for plaintiff-appellant.
    Bob J. Keeter, Schroff, Keeter, Glass & Newberry, P. C., Springfield, Robert Stem-mons, Mount Vernon, for defendants-respondents.
   TITUS, Judge.

Plaintiff’s first amended petition filed March 28, 1975, asked actual and punitive damages of defendants for real estate trespass. The petition aped the description of the property recited in the March 18, 1966, deed given plaintiff by his grantors. Neither the deed nor the petition asserted that plaintiff’s north property line was delineated by an agreed boundary fence. On the day trial commenced, April 6, 1977, or two years after the first amended petition was filed, the court permitted plaintiff to again amend his pleading by declaring that his north property line “was an agreed boundary fence which was upon the boundary line between Plaintiff’s property and Defendant’s property.” The trial court directed a verdict for defendants at the close of plaintiff’s evidence and plaintiff appealed. (When used in the singular hereinafter, the term “defendant” refers to Hacienda Farms, Inc., owner of property north of plaintiff’s land).

Plaintiff asserts in his two points relied on: “I The trial court erred in granting defendants’ motion for a directed verdict because plaintiff made a prima facie case establishing the existence of a boundary line fence . . . and that defendants had trespassed on plaintiff’s land . . . causing damage. II The trial court erred in sustaining defendants’ objection to the testimony of Bennie Rozell concerning his survey diagram, and excluding the Rozell diagram because such evidence was admissible to establish the location of the boundary line between plaintiff’s and defendant's] property.”

The first point relied on might be interpolated into an assertion that plaintiff made a submissible case, but the point is wholly short of spotlighting “wherein and why” plaintiff claims the necessary elements of his case (whatever they may have been) were established by prima facie evidence sufficient to establish the existence of a boundary fence line or that defendants had trespassed. Rule 84.04(d), V.A.M.R.; Mannon v. Frick, 365 Mo. 1203, 1212, 295 S.W.2d 158, 166[15, 16] (1956). Simply asserting abstractly that plaintiff made a pri-ma facie or submissible case with no reason stated for the conclusion preserves nothing for appellate review [Giastris v. Union Elec. Co., 542 S.W.2d 65, 69[4] (Mo.App.1976)] because the abstraction does not comply with the mandatory requirements of Rule 84.04(d) [M & A Electric Power Cooperative v. Nesselrodt, 509 S.W.2d 468, 470[1] (Mo. App.1974)] which must be strictly applied. Long v. Lincoln, 528 S.W.2d 512, 513[1] (Mo.App.1975).

Plaintiff’s second point relied on likewise does violence to Rule 84.04(d). Albeit states that the court erred in excluding the testimony and diagram of witness Ro-zell, the point’s “because” clause is nothing more than an unadulterated abstraction as it nowhere undertakes to claim “wherein and why” the excluded evidence “was admissible to establish the location of the boundary line.” Abstract declarations penned in briefs do not sate the mandatory requirement of the rule and appellate courts are not required to seek through the transcript on appeal or the argument portion of an appellant’s brief to discover the “wherein and why” of a conclusionary asseveration. Brewer v. Blanton, 555 S.W.2d 381, 386[10-12] (Mo.App.1977); Barber v. M. F. A. Milling Company, 536 S.W.2d 208, 209-210[3-4] (Mo.App.1976).

Although the appeal should be dismissed for plaintiff’s neglect to abide by the mandates of Rule 84.04(d), the judgment nisi may be briefly affirmed on its merits.

The so-called “agreed boundary fence” was in two segments. As described by plaintiff, “[o]ne was an east-west segment that ran a little less than two thousand feet and then there was this northwest-southeast trending piece that ran about a thousand feet.” The fence, admittedly in existence for many years, ran through wooded areas from tree to tree in a zigzag fashion and across open areas from post to post in a generally straight line. As previously noted, plaintiff bought his property in 1966. Defendant, via its president, acquired its property in 1968 from the Wymans who had purchased it in 1964. None of the deeds to plaintiff, defendant or their grantors described any boundaries of their properties as consisting of the fence in question. Two surveys were made of defendant’s land— one in conjunction with its purchase from the Wymans and the other at a later date. Thereafter, defendant cleared property beyond the fence, a process which removed all but 300 feet of the fence and obliterated its previous location.

When owners of adjoining land occupy their respective properties up to a certain line which they mutually recognize and acquiesce in for a long period of time, they may be precluded from claiming that the acquiesced in line is not the true boundary. 12 Am.Jur.2d, Boundaries, § 85, at p. 620. However, to establish a fence or other markings as an agreed boundary line by long acquiescence, there must be proof of mutual conduct or acts recognizing it as such [Tillman v. Hutcherson, 348 Mo. 473, 481, 154 S.W.2d 104, 108[8] (1941)], and the mere acquiescence in the existence of a fence as a barrier, for convenience or for any reason other than a boundary will not amount to an agreement as to a boundary or establish it as a true line. Ackerman v. Ryder, 308 Mo. 9, 27-28, 271 S.W. 743, 748[5] (1925); 11 C.J.S. Boundaries § 79, at p. 653; cf. West v. St. L., K. C. & N. Ry. Co., 59 Mo. 510 (1875).

The failure of plaintiff’s evidence lies in the fact that it wholly lacked proof of the fence ever having been mutually agreed to, recognized or acquiesced in as a boundary by any parties owning or claiming to own property on either side thereof. In fact, it was not until plaintiff sought to amend his pleading on the eve of trial that there was any formal claim made by him that the fence constituted an agreed boundary. For all that is known from the proof, the properties on either side of the fence could have been owned by the same person or persons for many years who simply used the fence as a barrier, an internal division of property, for convenience or reasons other than as a demarcation of boundaries. Also, there was absolutely no evidence that any previous owners of the lands mutually acquiesced in, agreed or considered the fence as the true dividing line. “A line may not be established by acquiescence unless there is some contention between the landowners over the location of the line as a result of which a boundary is established in which the landowners subsequently acquiesce. ‘Adjoining landowners might go on for years without knowing the exact location of their dividing line, and unless and until there is a dispute there would be no reason for establishing a line by acquiescence [or agreement].’ [citations omitted] Failure to dispute the location of a fence is not necessarily acquiescence in a boundary since a fence may be placed for purposes other than fixing the boundary.” Cothran v. Burk, 234 Ga. 460, 216 S.E.2d 319, 321[3, 4] (1975).

As to plaintiff’s second point relied on it suffices to say that if the fence was not, in fact, an agreed boundary fence, then its exact location is of no moment and the trial court’s exclusion of a purported survey which did not commence at a corner established by the government or reestablished pursuant to statutory methods [Wells v. Elder, 544 S.W.2d 258, 259[1, 2] (Mo.App. 1976)] is likewise of no moment and was not prejudicial to plaintiff.

Judgment affirmed.

FLANIGAN, C. J., arid CAMPBELL, BARKER and HENRY, Special JJ., concur.


source: Caselaw Access Project

author: GREENE, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Lawrence Gene TIMMONS, Defendant-Appellant.
    No. 11021.
    Missouri Court of Appeals, Southern District, Division One.
    June 28, 1979.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    David R. Fielder, Springfield, for defendant-appellant.
   GREENE, Judge.

On December 15, 1977, after trial by jury in the Circuit Court of Greene County, defendant Lawrence Gene Timmons was found guilty of the crime of robbery in the first degree and was thereafter sentenced by the trial court to imprisonment in the custody of the Missouri Department of Corrections for a term of five years. Defendant appeals the judgment and sentence of the trial court.

The facts of this case, as testified to at time of trial, are as follows. On March 2, 1976, Allyson Wright, a college student, was in her apartment at 620 East Madison, Springfield, Missouri. A man came to the door and inquired as to the whereabouts of a girl by the name of Barbara Heinrich who lived upstairs. Ms. Wright told him that Barbara was at work and would not be home until later. The man left, but later returned, again asking for Barbara. She told him that Barbara was not home. He followed her into her apartment, hit her in the face several times, took her wallet, which contained money, credit cards and other identification, and left. The police were called. They questioned her and obtained a description of her assailant.

Nothing else of interest happened until March of 1977. During that month, Suzy Crouch, who lived at 917 East Normal, Springfield, Missouri, found Ms. Wright’s wallet in the basement of her house while she was searching for a hampster that had escaped. The wallet contained the student identification card of Ms. Wright. Suzy contacted Allyson and told her that she had found the wallet. Ms. Wright did not come after it, but called the police and informed them of the incident. In June of 1977, detectives from the Springfield Police Department picked up the wallet and its contents. Eon Worsham, one of the detectives, then gave four pictures, or “mug shots”, to Detective Carl Malin. Worsham had personally selected the pictures from a mug shot file at the police department as pictures of individuals who, in his opinion, approximated the description of the robber given them by the victim. These pictures were introduced into evidence as state’s exhibits 1 through 4, with one picture (state’s exhibit 2) being of defendant. Ms. Wright, in the presence of Malin, identified exhibit 2 as a picture of her assailant. Malin gave the pictures back to Worsham. Worsham placed the four pictures on his desk. When Ms. Wright came in the following Monday to identify her property, she again picked exhibit 2 as a picture of her assailant and told Worsham that this was the man who had robbed her. This out-of-court identification occurred approximately 15 months after the date of the robbery.

Ms. Wright could not identify the defendant in open court as the person who had robbed her. She was asked if she recognized state’s exhibits 1 through 4. Defendant objected, which objection was,

“I am going to again object to any identification of the picture of the defendant at this time, based on her previous inability to identify the defendant in open court. It is defendant’s contention that this is a back-hand method of identification that in effect — the practical effect of it is her inability to point out the defendant is making his photograph identification more or less bolstering her testimony on the stand and her inability to testify.”

This objection was overruled by the trial court. The court had previously overruled defendant’s motion to suppress evidence, which motion was based on the alleged impermissible suggestive photographic display by the Springfield Police Department. Ms. Wright then identified the exhibits as photographs that had been shown to her earlier by the police and identified exhibit 2 as a picture of the robber, as he looked on March 2, 1976.

A state’s witness, Charles Ball, had lived at the 917 East Normal address at the time of the robbery. He testified that defendant, in approximately April of 1976, had come to live at the house and had lived in the basement where the wallet was found. He identified state’s exhibit 2 as a picture of defendant, as he looked in April of 1976. He stated that defendant’s appearance had changed at time of trial, in that his hair was darker and longer and he now had a mustache. The testimony of defense witness John Gage was similar to that given by witness Ball. Detective Brazeal, of the Springfield Police Department, also testified that exhibit 2 was a picture of defendant as he looked in May of 1976.

At the close of all of the evidence, defendant moved for a directed verdict of acquittal on the grounds that the evidence presented by the state was insufficient to sustain a conviction. The motion was overruled. In his motion for new trial, defendant charged, in addition to other alleged, but abandoned, errors, that,

‘1. The court erred in overruling the Defendant’s Amended Motion to Suppress any photographic identification of Lawrence Gene Timmons by Allison (sic) Wright for the reason that the four photograph (sic) displayed by the Springfield Police Department in its photographic lineup were so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification of the Defendant’s photograph and misiden-tification of the Defendant himself.’
‘3. The court erred in overruling the Defendant’s objection to identification of a photograph of the Defendant by Allison (sic) Wright for the reason that said identification of the Defendant’s photograph by Allison (sic) Wright bolstered her inability to identify the Defendant in open Court, and thus was inadmissable (sic).’
‘4. The. Court erred in overruling Defendant’s Motion For a Directed Verdict at the close of the State’s case for the reason that the State did not make a submissive case in that the Defendant was inadequately identified by the State’s witnesses as the person who committed the alleged crime.’
‘5. The Court erred in overruling Defendant’s Motion For a Directed Verdict at the close of all evidence for the reason that there was no additional evidence offered after the close of the State’s case which would make the State’s case submissive and there was no additional evidence offered identifying Defendant as the person who committed the alleged crime.’

Defendant raises three points on appeal. He claims that the trial court erred 1) in overruling defendant’s motion to suppress photographic evidence of identification of defendant by Allyson Wright for the reason that the photographic display of “mug shots” was so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification; 2) by permitting testimony by the victim and other witnesses as to the victim’s extrajudicial photographic identification of the defendant; and, 3) in overruling defendant’s motion for directed verdict of acquittal because there was no in-court identification of defendant as the perpetrator of the crime.

The primary requirement in the trial of a man charged with a crime is that he must be shown to be the person who committed the offense. State v. Brown, 542 S.W.2d 789, 791 (Mo.App.1976). The issue of identification of the perpetrator of a crime is for the jury, and appellate courts do not delve into a determination of the weight of the evidence in such cases. State v. Maxwell, 502 S.W.2d 382, 390 (Mo.App. 1973). However, we do have an obligation to determine if the identification evidence submitted to the jury was admissible and, if not, whether such admission was prejudicial error. We, therefore, discuss the three assignments of error.

MOTION TO SUPPRESS

On this assignment of error, defendant contends that the Springfield Police used impermissibly suggestive procedures in selecting the photographic display from which the victim identified defendant’s photograph as a picture of her attacker. Defendant has not preserved this point for review, since, although he raised the issue in his motion to suppress testimony, which was overruled, he did not timely object to such testimony on that ground at time of trial. His objection, at time of trial, was that the testimony should not be allowed because the victim could not identify defendant in open court at time of trial, which objection was properly overruled. Having let his assignment of error expire, he may not raise it now. State v. Johnson, 536 S.W.2d 851, 854 (Mo.App.1976).

We have not been asked to review this assignment under the doctrine of plain error, Rule 27.20(c), but, if we had been asked to do so, it is obvious, from reading the transcript, that neither manifest injustice nor miscarriage of justice resulted from the trial court’s ruling that the photographs were admissible. There is nothing in the record to indicate, in any way, that Detective Malin, or anyone else, followed suggestive procedures in the selection of the four photographs in question, or in showing them to the victim. All of the photographs were of the same size and were of white males answering the description she gave to the police. No suggestions were made by any of the officers and none of the photographs were emphasized. We rule against the defendant on this assignment of error.

EXTRAJUDICIAL TESTIMONY

On this point, defendant contends that the trial court committed error in allowing the victim and Detective Worsham to testify as to extrajudicial identification of the defendant by the victim. No objection was made to the testimony of the victim regarding the extrajudicial identification of exhibit 2, other than a claim that it was inadmissible because she could not identify defendant in open court. At the time of trial, Detective Worsham was asked the following questions and gave the quoted answers thereto.

“Q. Would you describe what, if anything, occurred with regard to Miss Wright and to those pictures, State’s Exhibits 1 through 4?
A. Okay, Det. Malin give me the pictures back and had placed Mr. Timmons’ picture on top and said this was the person she had picked out. I had them laying on my desk and when she walked into the police station and approached my desk she saw these pictures laying on my desk and again said that was the person.
Q. Now, with regard to any of those exhibits, would you turn them over and tell me if there are any distinguishing characteristics that you observed being made?
A. On the back of the picture of Mr. Timmons she wrote her initials and the date, 6-22-77.”

No objection was made to such testimony at time of trial, and no claim of error regarding it was made in the motion for new trial. Also, defendant failed to comply with Rule 84.04(d) as he does not state in his brief “wherein and why” the trial court erred in allowing the challenged testimony. This assignment preserves nothing unless we review for plain error. Long v. Lincoln, 528 S.W.2d 512, 513 (Mo.App.1975); State v. Gant, 490 S.W.2d 46, 49 (Mo.1973); State v. Simmons, 500 S.W.2d 325, 328, 329 (Mo.App.1973). We hold that the admission of such testimony by the trial court was not prejudicial error, as no manifest injustice or miscarriage of justice occurred by reason of such testimony.

It was not error for the court to permit the testimony of the victim as to the extrajudicial identification of exhibit 2 as a picture of the man who robbed her. The identification of the photograph occurred much closer to the date of the crime than the trial itself. Since such was done under nonsuggestive circumstances, the jury could consider it more reliable than an in-court identification at time of trial. A failure to identify at time of trial may be explained by many circumstances, such as a drastic change in hair coloring, the presence or absence of facial hair, and an increase or decrease in the weight of the suspect, as is the case here. The inability of the victim to make an in-court identification of defendant at time of trial merely went to the weight of her testimony and not to its admissibility. State v. Adail, 555 S.W.2d 672, 674 (Mo.App.1977).

As to the testimony of Detective Worsham regarding the extrajudicial identification of defendant by the victim such matters are not ordinarily reviewable when improperly preserved, State v. Johnson, supra, at 856, and any such claimed error is certainly not preserved here. We decline to review this assignment under the plain error doctrine, as a careful reading of the transcript does not indicate any manifest injustice or miscarriage of justice to defendant by reason of the admission of the hearsay testimony of Detective Worsham. We are fully aware of the holding in State v. DeGraffenreid, 477 S.W.2d 57 (Mo.banc 1972). However, in DeGraffenreid, the hearsay statement was objected to at time of trial and preserved in the motion for new trial, which is not the case here. DeGraf-fenreid was not a plain error case. We rule this assignment of error against the defendant. See State v. Gant, supra, at 49.

JUDGMENT OF ACQUITTAL

Here, defendant urges that his motion for judgment of acquittal should have been sustained because the victim could not make a positive in-court identification of him at time of trial. This contention goes to the weight of the identification testimony and is not a subject for appellate, review. State v. Maxwell, 502 S.W.2d 382, 390-391 (Mo.App.1973). The issue of identity was one for the jury, which had a duty to compare and weigh all of the evidence regarding identity to determine if defendant was the perpetrator of the crime. State v. Blackmore, 327 Mo. 708, 716, 38 S.W.2d 32, 35 (1931). They did so in this case, and by their guilty verdict, satisfied themselves on that issue. After a careful review of the transcript, we see no reason to disturb their verdict.

The judgment is affirmed.

FLANIGAN, C. J., and TITUS, J., concur.

      . Unless otherwise indicated, all references to rules are to Missouri Rules of Court, V.A.M.R.


author: GEORGE HENRY, Special Judge.

text:
    STATE of Missouri, Respondent, v. Michael K. WILLIAMS, Appellant.
    No. 10923.
    Missouri Court of Appeals, Southern District, Division One.
    June 29, 1979.

      Richard L. Parker, Vienna, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Steven S. Clark, Asst. Attys. Gen., Jefferson City, for respondent.
   GEORGE HENRY, Special Judge.

Upon trial by jury, defendant was found guilty of forcible rape and sentenced to life imprisonment. He appeals. We affirm.

Defendant makes four complaints of error: First, that the court improperly admitted evidence of the independent crime of robbery; Second, that the court improperly admitted evidence of the independent crime of escape; Third, that the closing argument of the prosecution contained improper and prejudicial remarks; and Fourth, that he has been denied his right to a speedy trial.

This extended series of events began around 1:00 a. m. on October 8, 1974, when the victim of the rape and her husband were awakened by a knock on the door. Her husband answered the door where he was confronted by defendant and a co-defendant (separately tried) who requested use of the phone to call for help to an automobile accident. When the husband started to use the phone, defendant exhibited a pistol and demanded money. During the intruders’ stay in the home, defendant twice raped the victim at knife point and then at defendant’s suggestion, defendants’ co-defendant also raped the victim. Preceding, between and following the acts of rape, defendant searched the home and on leaving, defendant and his co-defendant took with them from the house, guns, jewelry and credit cards. The stolen items were later recovered and admitted into evidence over defendant’s objection.

Defendant complains that the items taken were improperly admitted in evidence as such proof went to proof of the independent crime of robbery and had no legitimate tendency to directly establish the defendant’s guilt of the charge of forcible rape and that such evidence did not fall within the recognized exceptions which permit evidence of other crimes to establish motive, or intent, or absence of mistake or accident, or a common scheme or plan embracing the commission of two or more crimes so related that proof of one tends to establish the other or identity of the person charged. This is a correct statement of the well-recognized rule and its exceptions. State v. Reese, 364 Mo. 1221, 274 S.W.2d 304 (Banc 1954).

“Another well-recognized rule relating to the admission of other crimes is that where the circumstances are such as to constitute one continuous transaction in the accomplishment of a common design and the crimes are concurrent so that the proof of one cannot be made without a showing of facts tending to establish the other, the entire facts may be admissible since they are regarded as part of the ‘res gestae’ and therefore all the facts may be admitted. In such circumstances the state is not required to nicely sift and separate the evidence and include the testimony tending to prove the crime for which the defendant is not on trial when it forms a part of the ‘res gestae’ of the crime charged.” State v. Cox, 508 S.W.2d 716, 723 (Mo.App.1975); State v. Sinovich, 329 Mo. 909, 46 S.W.2d 877, 880 (1931); State v. Taylor, 508 S.W.2d 506, 510 (Mo.App.1974); State v. Parton, 487 S.W.2d 523, 527 (Mo.1972). The facts here were of a continuing ordeal and so intertwined as to be inseparable. Admission into evidence of the items taken was not error.

The second claim of error is that “The Court erred in allowing evidence of the independent crime of escape; specifically the court erred in allowing into evidence the picture of the Maries County jail with the hole cut into the wall through which defendant escaped.” Prior to the start of the trial, defendant filed a motion in limine seeking to prevent the prosecution from inquiring into defendant’s prior criminal record. The motion was overruled. Evidence produced in the trial shows that the criminal record referred to defendant’s plea of guilty and two-year sentence for escape from the Maries County jail approximately two weeks following his arrest on the rape charge. The following questions to Officer Viessman, a sergeant with the Missouri State Highway Patrol assisting in the investigation of the escape, first called attention to the hole in the jail wall:

“Q. And when you went to the jail there, did you examine the jail?
A. Yes.
Q. When you examined the jail, tell the jury what you saw.
A. Well, in the bullpen area, off to the west side, there was a hole in the wall.”

Defense counsel made no objection to these questions. Later a photograph of the hole in the jail wall was offered and received into evidence over defendant’s objection that the same was very prejudicial. No further mention was made of the escape until defense counsel in cross-examination of Officer Viessman established that defendant pled guilty to the crime of escape and received a two-year sentence. Defendant took the stand in his own defense and testified to his plea of guilty and receipt of a two-year sentence on the escape charge. Defendant recognizes that evidence of the crime of escape is admissible as bearing on the issue of guilt even though it is evidence of a separate crime. State v. Holt, 465 S.W.2d 602, 607 (Mo.1971).

Point II fails to comply with the requirements of Rule 84.04(d) V.A.M.R. because it does not undertake to state “wherein and why” the introduction of the exhibit was error, such being left to conjecture and guess. State v. Holman, 556 S.W.2d 499, 506 (Mo.App.1977); State v. Haslip, 583 S.W.2d 225 (Mo.App.1979) (So. Dist. No. 10623). This is especially true in view of the fact that defendant did not object when mention was first made of the hole in the jail wall. Point II preserves nothing for review.

Error is also assigned based upon closing argument of the prosecuting attorney when he argued possibilities of parole. The prosecutor, in opening argument, stated, “But I want to tell you that this evidence, this kind of man deserves a maximum penalty of life in the penitentiary.” “And let him prove to the penitentiary people when he’s rehabilitated himself and can be released.” There was no objection by defense counsel to this argument. Again without objection, the prosecutor argued that sentence to the penitentiary should be “for long enough that his rehabilitation may be able to be guaranteed.” Defense counsel, in his argument, introduced mention of the Department of Corrections and argued to the jury that the “most important duty that you’ve got is to consider that there should be no more time in the penitentiary than it takes to rehabilitate the defendant.” He also argued that “the purpose of punishment is not punishment but rehabilitation.” The judge, in overruling the prosecution’s objections, allowed the argument recognizing the prosecution’s ability to retaliate. During the prosecution’s closing argument, one reference was made to “getting out” and one reference to rehabilitation judgments connected with the Department of Corrections. Defense objections were sustained in each instance. Control of arguments of counsel and determination of the existence of prejudice as a result of an argument are matters within the discretion of the trial judge and the judge’s rulings will not be disturbed on review unless such discretion has been clearly abused. State v. Frankoviglia, 514 S.W.2d 536, 539 (Mo.1974); State v. Berry, 526 S.W.2d 92, 102 (Mo.App.1975); State v. Hicks, 535 S.W.2d 308, 313 (Mo.App.1976). Defendant also asserts that the prosecutor’s closing argument suggestion of a sentence which would not return appellant to the streets was improper. This point is not preserved for review because it was not covered in the motion for a new trial. State v. Grey, 525 S.W.2d 367, 370 (Mo.App.1975); State v. McNeal, 539 S.W.2d 722, 725 (Mo.App.1976). The matters complained of in the state’s argument do not constitute prejudicial error.

Defendant’s last point is that the court erroneously overruled his motion to dismiss for want of prosecution and lack of a speedy trial. Between the time of defendant’s arrest on October 11, 1974, and his trial on May 31,1977, defendant escaped jail; filed for a change of venue; pled guilty and served a sentence for escape in the Missouri State Penitentiary, and disqualified the circuit judge. Before overruling the motion to dismiss for lack of a speedy trial, Judge Moore elicited from defense counsel that the defendant did not bring his motion for a speedy trial to the attention of Judge Northern (later disqualified) and did not request a trial setting at any time. Defendant agreed to one continuance and did not object to a second continuance from March 30,1977, to May 31,1977, made at the request of the state due to illness resulting from a heart attack suffered by a state’s witness (husband of the victim). The defendant waived his right to a speedy trial by failing to take affirmative action in demanding trial. State v. Harper, 473 S.W.2d 419, 424 (Mo. banc 1971); State v. Williams, 554 S.W.2d 524, 528 (Mo.App. 1977). The point is overruled.

Judgment affirmed.

FLANIGAN, C. J., TITUS, P. J., and CAMPBELL and BARKER, Special Judges, concur.


author: SWOFFORD, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Gerald HOLLIS, Appellant.
    No. KCD 29582.
    Missouri Court of Appeals, Western District.
    June 29, 1979.

      Philip H. Schwarz, McMullin, Wilson & Schwarz, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., J. Michael Davis, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   SWOFFORD, Chief Judge.

The appellant (defendant) was convicted of murder in the second degree by jury verdict and he was sentenced to 99 years and 1 day in the Missouri Department of Corrections and this appeal followed in due course.

The facts appearing from the record pertinent to the issues on this appeal may be thus summarized:

In the early morning hours of July 26, 1975, Mrs. Lelia M. Neely returned to her home at 7453 Walrond in Kansas City, Missouri and found her husband, Ernest K. Neely, on the bed in their bedroom covered with blood and' apparently lifeless. She fled from the home and the police were called. Upon arrival, the police found Mr. Neely lying face-up on the bed with his head and chest covered with blood. He was cold and there was no discernible pulse. Later medical examination disclosed that he had suffered lacerations of the face and head, multiple skull fractures and severe injury to the brain.

Investigation of the Neely home disclosed that the window screen ordinarily screening a window to the den was removed and leaning against the outside wall of the house and it had been slit at a point next to the window lock. The window was open, the window curtains disturbed and a cover over a sofa in the den beneath the window was mussed. The telephone had been torn loose. A portable TV and two stereo speakers were missing from the home, and the family dog had a noticeable swollen place on its head.

The State offered the testimony of Adrian Kemp, who was acquainted with the defendant and who resided at 7429 College, in the same neighborhood as defendant. On the morning of July 26, 1975, he was working on his car at his home when he observed the defendant approaching west on 75th Street from the direction of a vacant house. The defendant told Kemp he had killed a man and that he had a TV and two speakers at the vacant house. The defendant told Kemp he had hit “the man” with a hammer in a house at the corner of 75th and Walrond; that he had gone into the house through a window; that he had also “knocked the hell out of the dog, some dog”; that the man was on a bed and started to raise up and “he started beating the man with the hammer”; that he then got the color TV and stereo speakers and put them at the side of a vacant yellow house next-door to the house “he was in”; that he then went back in the house to “finish” and beat the man some more; and, that he then went to his home at 7412 College and washed the blood from his arms and the hammer.

The defendant then asked Kemp if he would drive him to 64th and Benton. Kemp agreed to do so and the defendant got the speakers and TV and put them in the trunk of Kemp’s car. They then drove to 6411 S. Benton and took “the stuff” into that house and left the items there. The next afternoon Kemp drove the defendant to 6411 S. Benton and then to a barber shop in the vicinity of 32nd and Prospect; the defendant took a portable TV into the shop, returned with $50.00 and gave Kemp $5.00. A few days later, Kemp gave a full statement to the police.

Melody Channel testified for the State that on July 26, 1975, in the early forenoon, the defendant came to her home at 6411 S. Benton. She stated that she did not see the stereo speakers at that time, but did see them on July 30, 1975 when the police came to her home. Upon the latter occasion the police picked up two stereo speakers and the record discloses that Mrs. Neely identified one of these as belonging to her husband and as missing from their home.

On July 30, 1975, Police Officer William Martin interviewed the defendant at the Juvenile Justice Center of Jackson County, Missouri. Martin testified that the defendant, his father, Juvenile Officer Steivers, and Police Officer Noel were present. Martin, Steivers and Noel advised both the defendant and his father of the defendant’s rights under Miranda, and a Miranda waiver was signed. At this interview the defendant denied any connection with the burglary at Neely’s home. He stated that he had stayed at home until 12:30 or 1:00 a. m. on July 26, 1975; had then gone walking, stopping at Adrian Kemp’s house and helping Kemp work on a car; he and Kemp had then gone riding; and they had stopped at “Brian’s” house on South Benton for a few minutes. The defendant specifically denied that he had taken anything into the Channel home at 6411 South Benton.

When advised by Officer Martin that the police had recovered two stereo speakers at the Channel house that day, the defendant told the police he had lied. He then stated that he had left his home at about 1:00 a. m. on July 26, 1975 and had run into “four dudes” (not otherwise identified) at a park at 74th and Bellefontaine, had engaged in a crap game with them and had won $35.00. The defendant stated he then left the “dudes” and walked to 75th and Indiana where he again ran into the same “dudes”, who at that time had in their possession two stereo speakers and a portable TV which the defendant purchased from them with the $35.00 he had previously won from them at craps. He stated he concealed these items in the bushes at 75th and Indiana when the “dudes” refused to take him to the Channel house on South Benton. He stated he then contacted Adrian Kemp, who drove him to the Channel house where they dropped “the stuff”. After relating these occurrences and at the suggestion of Officer Martin, the defendant and his father retired to another room for a private conference. Upon their return they stated that they were “going to stay with the story”, would have to get a lawyer, and did not want to talk to the officials any further. The interview was thereupon terminated.

The defendant did not testify and offered no evidence in his defense. He was sixteen years of age at the time of the offense and his arrest. He raises as Point II on this appeal that the trial court lacked jurisdiction over the cause for the reason that there was no record before the court that the juvenile court had ever relinquished its exclusive jurisdiction, granted by Section 211.031 RSMo 1976 Supp., over the defendant as required by Section 211.-071 RSMo 1969. See State v. Ford, 487 S.W.2d 1[3, 6] (Mo.1972).

The defendant filed no motion in the general criminal division below requesting dismissal of the proceedings or remand to the juvenile court as contemplated by Rule 25.06, Rules of Criminal Procedure. The only reference to this lack in the transcript was a comment by the trial court that the file before it did not contain the juvenile record affecting jurisdiction and his inquiry of counsel if the defendant was “certified here from the Juvenile Court?” In response to this, the following appears:

“MR. PIERCE (Defense counsel): My understanding is that he was.
MR. DAKOPOLOS (Prosecutor): Yes, Your Honor.”

The trial then proceeded without further mention of the matter.

The State argues with convincing force that the defendant has waived his objections as contained in Point II under the state of the record and under the authority of Jefferson v. State, 442 S.W.2d 6, 12[7] (Mo.1969); Ford v. State, 534 S.W.2d 111 (Mo.App.1976), and State v. LePage, 536 S.W.2d 834, 836[2] (Mo.App.1976). The defendant, however, counters by requesting that if this point is “capable of being waived” that it be considered under Rule 27.20(c) as plain error. The defendant cites in support of this argument the case of State ex rel. D_ V_v. Cook, 495 S.W.2d 127, 128[1] (Mo.App.1973), where this Court properly held that the statutory provisions dealing with the handling of juveniles in the preliminary stages constituted a critically important stage of the ensuing criminal prosecution and must conform to basic requirements of due process and fairness.

Further discussion of these positions and authorities is unnecessary for the decision here because following the submission of the cause the State (respondent) moved that the documents reflecting the proceedings in the Juvenile Court be forwarded to this Court as part of the record on appeal, and that motion was sustained by this Court under Rule 81.12(c) which authorizes this Court to do so when “ * * * anything material to either party has been omitted from the transcript by error or accident * * * ”, and Rule 84.03 which empowers this Court to order the Circuit Clerk to send directly any part of the pertinent records.

In accordance with this Court’s order, the Attorney General has filed here duly certified copies of the formal records of the Juvenile Court with reference to the pro-, ceedings there following the defendant’s arrest, including the “Order Dismissing Petition and Allowing Prosecution Under General Law” relating to this defendant, and such documents are found to be in full and meticulous compliance with all statutory requirements permitting the indictment and prosecution of this defendant in the court below.

The trial court had jurisdiction over the cause and defendant’s Point II is ruled against him.

The defendant charges that the trial court erred in failing to sustain his motion to discharge for the reason that he was not provided a speedy trial as guaranteed by the Sixth Amendment to the Constitution of the United States since more than seven (7) terms of court had passed between the time of his indictment and the time of his trial (Point I).

To implement the constitutional right to a speedy trial the General Assembly of Missouri had enacted certain statutes. Generally, these statutes provide that a person charged with a crime who shall not be brought to trial before the court having jurisdiction before the end of the second term of such court “after such indictment found” shall be entitled to be discharged unless such delay shall happen on the application of the prisoner or by reason of lack of time to try the cause at the second term. Section 545.890 RSMo 1969. The time or number of terms thus specified is, however, extended to three terms in counties in which there shall be more than two regular terms of court, excluding the term in which the indictment was found. Section 545.920 RSMo 1969. This latter section applies to the case at bar since Jackson County by statute has five regular terms of court. Section 478.247 RSMo 1969. (Repealed as of January 2, 1979)

Therefore, the defendant’s position is that since more than three terms of court elapsed after the term in which he was indicted, he was entitled to be discharged after the end of the fourth term. Section 545.890 RSMo 1969. Indeed, the record stands clear that the defendant was indicted during the May term of 1975 and was brought to trial on March 7, 1977 near the end of the January term 1977. Disregarding the term in which the indictment was found, as is required by the above-cited statutes and decisional law, Hulstine v. State, 533 S.W.2d 228, 230[8] (Mo.App.1975), the defendant was confined before trial for nearly eight (8) full terms of court over a period of about 20 months.

However, this constitutional guarantee to a speedy trial is not violated by the mere passage of time, in this case 20 months and 7 terms of court. Such fact does not establish, per se and standing alone, a constitutional violation. State v. West, 484 S.W.2d 191, 193[3] (Mo.1972). See also: U. S. v. Weber, 479 F.2d 331, 332[2] (8th Cir. 1973), 21 months; U. S. v. Baumgarten, 517 F.2d 1020, 1026[5] (8th Cir. 1975), 21 months; U. S. v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966), 19 months.

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) the Supreme Court set down four factors which will be considered on this issue: 1) reason for the delay; 2) defendant’s assertion of his constitutional right; 3) prejudice to the defendant; and 4) length of the delay.

It is the basic and underlying purpose of both the Sixth Amendment guarantee and the Missouri Statutes to ensure a speedy trial and to prevent laches on the part of the State or other prosecuting authority, but is not intended to operate if the trial is delayed through no fault of the State, State v. Mace, 427 S.W.2d 507, 509[2] (Mo.1968), as where the defendant’s requests for continuances (or consents thereto) or other actions by defendant cause the delay, State v. Barlish, 421 S.W.2d 558, 559[1] (Mo.App.1967); State v. Barrett, 406 S.W.2d 602, 604[5] (Mo.1966). In this case, the record discloses that an application for a continuance was filed by defendant which apparently resulted in postponement of the trial through June 14,1976. Also, he filed a Motion for Mental Examination on September 12, 1975 (which was granted) and on October 13, 1976 (which was denied). Further, he was apparently represented throughout the course of these proceedings by three different lawyers. These matters are mentioned not in criticism of the defendant or his counsel but to demonstrate that some delay was directly caused by the defense. On the other hand, the record discloses that no request or action by the State resulted in any delay.

Furthermore, the defendant herein did not at any time request or assert his constitutional right to a speedy trial, a prerequisite condition to discharge. As was said in State v. West, 484 S.W.2d 191, 193-194[3] (Mo.1972):

“These sections (of Missouri statutes) have recently been interpreted not to entitle an accused awaiting trial to be released simply because the required number of terms have elapsed but to require in addition to that a showing that he has demanded a trial and that his request was made unsuccessfully for a reasonable length of time before his right to release has been asserted. State v. Harper, Mo. Sup. en Banc, 473 S.W.2d 419.” (Emphasis supplied)

See also: State v. Haslip, 583 S.W.2d 225 (Court of Appeals, Southern District, 1979; Hulstine v. State, supra, 1. c. 230[5].

Having failed to make such request or assert such right, the defendant did on March 2, 1977 file his motion to dismiss for lack of a speedy trial, which was denied on the morning the trial commenced, March 7, 1977, which denial is now urged as error. If by indulging a broad degree of tolerance this motion could be deemed a request for a trial, he obtained the trial four days thereafter.

Finally, there was no attempt by the defendant to show that he was prejudiced by the delay or that such “involved purposeful or deliberately oppressive actions by the state prosecuting officials”. The record affords no basis for a claim that he was denied the federal and state constitutional guarantees. State v. Rowlett, 504 S.W.2d 48, 55[4] (Mo.1973).

The defendant’s Point I is ruled against him.

The defendant’s Point III is that the court erred in failing to suppress evidence of statements made by him to police officers for the reason that there was no showing on the record that he was advised that criminal responsibility could result from the statement and that the police officers were his adversaries rather than his friends. From the wording of this allegation of error it is not clear as to the exact occasion referred to when the defendant’s due process rights, as a juvenile, were thus alleged to have been violated. A reading of his motion for a new trial (paragraph 9) and the argument portion of his brief make it apparent that the time referred to was the interrogation of defendant at the Juvenile Justice Center on July 30, 1975, testified to by Officer Martin, as hereinabove summarized.

The defendant did not file a motion to suppress the testimony of Officer Martin nor ask for a hearing as to the admissibility thereof under the formula of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 1780[5-7], 12 L.Ed.2d 908 (1964). It is only by means of such independent eviden-tiary hearing, out of the presence of the jury, that the court can make a proper finding as to the voluntary issues of the statement (as was done in this case pertaining to the testimony of jailor O’Connor). This hearing and the procedures mandated by Jackson v. Denno, supra, apply where the admission or confession is properly challenged and a hearing requested, State v. Jackson, 448 S.W.2d 895, 896[1] (Mo.1970), and no duty or obligation rests upon the trial court to conduct, sua sponte, such an evidentiary hearing, State v. Kelly, 539 S.W.2d 106, 111[10] (Mo. banc 1976); State v. Blanchard, 527 S.W.2d 37, 38[1] (Mo.App. 1975). Neither did the defendant object to any question or move to strike any answer or to discharge the jury during the testimony of Officer Martin relating to the interview at the Juvenile Justice Center. Therefore, under the clear decisional mandate of the Missouri courts, this point was not properly preserved for review. State v. Cluck, 451 S.W.2d 103, 105[4] (Mo.1970); State v. Caffey, 457 S.W.2d 657, 659[3] (Mo.1970); State v. Shelton, 544 S.W.2d 599, 600[1] (Mo.App.1976).

Defendant’s Point V is posed against the same factual background as Point III, namely, events occurring during the interview at the Juvenile Justice Center on July 30, 1975. He charges that the trial court erred in permitting Officer Martin’s testimony “to the effect that appellant refused to talk to the police officers” which violated his constitutional right against self-incrimination. He has reference to the fact stated by Officer Martin that, after defendant had related his involvement in the crap game in the park, his winning and subsequent purchase from the same “dudes” of the “stuff” with those winnings, that he and his father did not want to talk to Martin further. Here again, no objection was made to this testimony nor was its admission asserted as a ground in the defendant’s motion for a new trial. Accordingly, it was not properly preserved for review.

Regardless of the record before this Court on this appeal, because of the serious nature of the offense charged and the resulting sentence, this record and the authorities relied upon by the defendant and those resulting from independent research have been carefully reviewed and studied in accordance with Rule 27.20(c) in search of “plain error”. None appears or develops from such efforts.

The interrogation at the Juvenile Justice Center was conducted with scrupulous care; the defendant’s interests were represented by Juvenile Officer Steivers, who along with the police officers gave him the Miranda warnings; he was specifically asked, and denied, that he had anything to do with the Neely burglary after being told that Officer Martin had recovered the speakers from 6411 S. Benton; he was freely permitted to tell his versions of the events and his activities during the night and early morning hours of the dates in question; he was provided means for private conference with his father, and further, on cross-examination by his counsel it was brought out by means of a leading question that “he didn’t kill anybody”.

There was not a shred of evidence or facts from which any reasonable inference could possibly be drawn that this occasion was beclouded by any coercion, duress, or promises of leniency or reward or otherwise corrupted. In the absence of such evidence his statements to Officer Martin must be deemed voluntary within the meaning of that word as applied to the protection of his constitutional rights. State v. Montgomery, 424 S.W.2d 744, 745[2] (Mo.1968); State v. Hester, 425 S.W.2d 110, 114[4] (Mo.1968).

The only basis for the position taken by the defendant that he was not properly advised of his rights at the July 30, 1975 interview is that he was not told that criminal responsibility could result from any statements he might make and that the officers present were his adversaries and not his friends. It is inconceivable that when he was asked about the burglary of the Neely home and the items taken and (as brought out by defense counsel in cross-examination) about “killing”, that the defendant and his father could entertain any doubts about the officers’ purpose to find out about his possible involvement in serious crimes. That they were aware of this and that Martin was to that extent at least an “adversary” is evident from the fact that, after the defendant gave his first version of his activities on the dates in question, the defendant admitted the untruth of that account and came forth with a more elaborate conflicting version, followed by the decision to terminate the interview and obtain a lawyer.

All the prosecutor did was to show by Officer Martin how and why the interview was terminated by this decision of the defendant and his father after the defendant made voluntary conflicting statements. Such showing was permissible. State v. Starks, 459 S.W.2d 249, 252[8] (Mo.1970).

This record does not form any basis for a finding by this Court that the matters complained of in Points III and V resulted in “manifest injustice or miscarriage of justice” as required by Rule 27.20(c). State v. Brown, 543 S.W.2d 796, 797[2] (Mo.App. 1976). Defendant’s Points III and V are ruled against him.

In Point IV of defendant’s brief, he bases his claim of error upon the charge that the trial prosecutor was prejudiced against him and that the trial should not have been held when and where it was. In support of this point the defendant sets forth a number of pretrial and trial incidents which are claimed to demonstrate the alleged prejudice of the prosecutor, which he asserts, retrospectively, give rise to the basic error that the trial should not have proceeded. None of the complaints were preserved for review.

The defendant made no objection to the time and place of trial nor to any of the cited examples of prosecutorial prejudice or misconduct. Neither did he request that the alleged prejudiced prosecutor be removed or the trial suspended or continued, or for any other relief. Neither were any of his present complaints incorporated in his motion for a new trial, a condition mandatory for preservation for review. State v. Madison, 537 S.W.2d 563, 565[5] (Mo.App.1976); Rule 27.20(a).

This Court has nevertheless undertaken a careful examination of the record as it pertains to the conduct of the trial prosecutor in the light of the charges of prejudice leveled against him and find such charges to be completely without merit or substance. On the contrary, it convincingly appears that the prosecution was conducted with skill and with meticulous care to conform to the highest standards and obligations of prosecutorial conduct. Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314, 1321 (1935); State v. Taylor, 508 S.W.2d 506 (Mo.App.1974); State v. McElroy, 518 S.W.2d 459 (Mo.App.1975).

This record does not warrant, in the slightest degree, a conclusion that the prosecutor’s conduct or attitude nor the trial court’s proceeding with the trial resulted in manifest injustice or miscarriage of justice. State v. Brown, 543 S.W.2d 796, 797[2] (Mo.App.1976); Rule 27.20(c). Point IV is ruled against the defendant.

The last charge of error, Point VI, is based upon the submission of the case to the jury on murder, second degree. The defendant argues that since the indictment charges conventional first degree murder and the evidence supported a submission of felony murder, the defendant was convicted of a crime for which he was not charged and of which there was no substantial evidence.

The trial court did submit the case on murder, second degree and manslaughter. No instruction on felony murder was tendered or given. The jury returned its verdict of guilty on murder, second degree and assessed the penalty at 99 years and 1 day.

Here, once again, the alleged error is not preserved for review. No objection was made to the instructions either when tendered or in the defendant’s motion for a new trial. State v. Cluck, supra; State v. Shelton, supra.

However, even if this point was properly preserved, it is without merit. It is clear from this record that the court could have submitted this case on felony murder, second degree, since the evidence supported a finding that Neely’s death occurred during the course of a burglary of his house and that the defendant caused his death and did not do so in sudden anger provoked by any unexpected acts of the victim. Alternate theories supporting a conviction may be submitted if each theory is supported by the evidence. State v. Green, 511 S.W.2d 867, 874[13] (Mo.1974); State v. Mullen, 532 S.W.2d 794, 797[4] (Mo.App.1975). The trial court could have submitted this case on both felony murder and murder, second degree. Defendant was not prejudiced by reason of the manner in which this. case was submitted. State v. Chambers, 524 S.W.2d 826, 829 (Mo. banc 1975).

The defendant’s argument on this point boils down to the rather startling weird result that he had a “right” to be convicted of the greater offense of felony murder or be acquitted. Section 556.220 RSMo 1969 provides, inter alia:

“ * * * any person found guilty of murder in the second degree, * * * shall be punished according to the verdict of the jury, although the evidence in the case shows him to be guilty of a higher degree of homicide.” (Repealed as of 1-2-79)

See also: State v. Nibarger, 391 S.W.2d 846, 848[1] (Mo.1965).

Since the evidence in this case supports both theories of felony murder and murder, second degree, it was not error for the court to submit upon the latter theory. Point VI is ruled against the defendant.

The judgment is accordingly affirmed.

All concur.

      . Prior to the reception of evidence a hearing was had before the court on defendant’s motion to suppress the testimony of O’Connor, a jailor at the Jackson County jail as to conversations with defendant wherein he confessed the murder. The motion to suppress was sustained. During the direct examination of Officer Martin he began to testify that he had talked to the defendant at his home before the interview at the Juvenile Justice Center on July 30, 1975, and upon objection by counsel that line of questioning was dropped and did not go beyond the bare fact that Officer Martin had seen the defendant at his home.


author: ROBERT R. WELBORN, Special Judge.

text:
    Bill HINCHEY, d/b/a Bill’s Drywall, Plaintiff, v. SENTINEL FEDERAL SAVINGS & LOAN ASSOCIATION, Appellant, and Booth Asphalt Paving Company, Respondent.
    No. 29733.
    Missouri Court of Appeals, Western District.
    June 29, 1979.

      James M. Beck, Johnson, Lucas, Bush & Snapp, Kansas City, for appellant.
    Howard E. Bodney, Kansas City, for respondent.
    Before HIGGINS, Special Judge, Presiding, Swofford, C. J., and WELBORN, Special Judge.
   ROBERT R. WELBORN, Special Judge.

Action to enforce mechanic’s lien. Trial court entered summary judgment in favor of lien claimant.

In June, 1974, Suburban Development, Inc. owned properties in Platte County, Missouri, and was engaged in the construction of single family residences thereon. Sentinel Federal Savings & Loan Association of Kansas City (“Sentinel Federal”) had made mortgage loans to Suburban Development, Inc. secured by deeds of trust of record against such properties. In October, November and December of 1974 mechanic’s liens were filed by various subcontractors against the properties.

On October 28, 1974, Booth Asphalt Paving Company (“Booth”) filed its mechanic’s lien statements No. 74-50 through 74-54 in the office of the Clerk of the Circuit Court of Platte County, Missouri. On November 4, 1974, R. L. Sweet Lumber Company filed its mechanic’s lien statements No. 74-56 through 74-59 in the office of the Clerk of the Circuit Court of Platte County, Missouri. On November 12, 1974, Bill Hinchey, d/b/a Bill’s Drywall, filed its mechanic’s lien statement No. 74.61 in the office of the Clerk of the Circuit Court of Platte County, Missouri.

On April 11, 1975, Bill Hinchey filed Platte County Circuit Court Case No. C — 75— 202 against defendants Suburban Development, Inc., Sentinel Federal and Arthur L. Reppert, Trustee, to enforce its mechanic’s lien No. 74-61. On May 2, 1975, R. L. Sweet Lumber Company filed an equitable action to enforce mechanic’s liens in the Circuit Court of Platte County, Missouri (Civil Action No. C-75-247) against defendants Suburban Development, Inc., Sentinel Federal, Arthur L. Reppert, Trustee, and six additional mechanic’s lien claim defendants, including Booth.

Upon the motion of Hinchey, the pending Hinchey action to enforce its mechanic’s lien and the R. L. Sweet Lumber Company equitable action to enforce mechanic’s liens were consolidated into one action.

On November 5,1975, Booth filed Answer and Cross-Petition in Case No. C-75-247 seeking to enforce its mechanic’s liens. Sentinel Federal filed motions to dismiss the Booth Cross-Petition and to strike the answers of Booth pursuant to the provisions of Section 429.170, RSMo 1969, and Rule 55.13.

On May 18, 1977, Booth filed Separate Motion for Summary Judgment on its Cross-Petition to enforce its mechanic’s liens. In response, on July 8, 1977, Sentinel Federal filed its Cross-Motion for Summary Judgment in favor of defendants and against Booth on its Cross-Petition.

On July 21, 1977, the Court entered judgment granting Booth’s motion for summary judgment and overruled all motions of Sentinel Federal for summary judgment against Booth and for dismissal of Booth’s cross-petition.

Sentinel Federal filed Notice of Appeal to this Court on August 24, 1977.

In this court, appellant contends that the trial court erred in giving judgment in favor of respondent because respondent failed to commence any action to enforce its mechanic’s liens within six months after filing and that such failure extinguished such liens and was a complete and absolute bar to their enforcement.

Section 429.170, RSMo 1969, provides:

“All actions under sections 429.010 to 429.340 shall be commenced within six months after filing the lien, and prosecuted without unnecessary delay to final judgment; and no lien shall continue to exist by virtue of the provisions of said sections, for more than six months after the lien shall be filed, unless within that time an action shall be instituted thereon, as herein prescribed.”

This section has consistently been applied to bar lien claims not filed within the time period there fixed. Redlon v. Badger Lumber Co., 194 Mo.App. 650, 189 S.W. 589, 590[2] (1916); Truog v. Elbel Construction Company, 374 S.W.2d 612, 614[1] (Mo.App. 1963); Frank Dusselier Basement Builders, Inc. v. Gwico Builders, Inc., 449 S.W.2d 865, 868[1-3] (Mo.App.1969). In this case Booth filed its liens on October 28, 1974. It took no action to enforce its liens until November 5, 1975, when it filed its answer and cross-petition in the Sweet case. This action occurred well beyond the six months’ time after Booth filed its liens.

The trial court recognized that such delay had occurred but found in favor of Booth on the theory that Rule 101.14 precluded Booth “from filing a legal action to foreclose its liens within the time remaining to it under the statute.” The court thus excused Booth’s failure to take action to enforce its liens within the six months’ period.

The trial court’s conclusion cannot be supported. Rule 101.14 requires that, when an equitable action is brought to enforce a mechanic’s lien, “ * * * all other suits that may have been brought on any mechanic’s lien claim or demand shall be stayed * * By its terms, the “stay” applies only to pending actions. Any action to enforce a lien thereafter must be in the equitable action. In this case, Sweet brought its equitable action on May 2, 1975. Booth had filed its lien but the six-month period of limitation upon action for its enforcement had expired at that time.

Rule 101.13 provides:

“After any such equitable action is commenced, the same shall be exclusive of other remedies for the enforcement of mechanics’ liens, but until such action is brought, the other remedies provided for in Sections 429.010 to 429.340 of the Revised Statutes of Missouri shall remain and exist. And, except as herein otherwise provided, the procedure in any such equitable action shall be governed by these Rules.”

There can be no question that, under this rule, the limitation provision of Section 429.170 had, prior to the filing of Sweet’s equitable action, barred any further action by Booth to enforce its liens. The trial court’s contrary conclusion was erroneous.

The judgment of the trial court is reversed and the cause remanded with directions to overrule Booth’s motion for summary judgment and to sustain appellant’s motion for summary judgment and to enter judgment in favor of appellant dismissing the mechanic’s lien cross-petition of Booth, with prejudice.

Reversed and remanded with directions.

All concur.

      . This motion marked the first appearance on behalf of Booth in the trial court of counsel for Booth who appeared in this court. Previously, Booth’s claim had been handled by other counsel.


author: WASSERSTROM, Judge.

text:
    N.J.W., Appellant, v. W.E.W., Respondent.
    No. KCD 29930.
    Missouri Court of Appeals, Western District.
    June 29, 1979.

      Ken P. Seek, Kansas City, for appellant.
    Charlotte P. Thayer, Thayer, Gum, Ernst & Wickert, Grandview, for respondent.
    Before SHANGLER, P. J., and WAS-SERSTROM and CLARK, JJ.
   WASSERSTROM, Judge.

This case was brought to dissolve a marriage of eight years duration, to which three daughters were born. The trial court decreed dissolution, awarded custody of all three children to the husband and ordered a division of the marital property. The wife appeals, claiming error as follows: (1) that the court made no findings of fact and conclusions of law although requested to do so; (2) that the court abused its discretion in awarding child custody to the husband; (3) that the court failed to exhaust its jurisdiction because it made no disposition of marital debts and obligations; and (4) that the court abused its discretion by not making a just distribution of property and by not allowing maintenance and attorney’s fees to the wife.

I.

The wife’s brief states that “the Trial Judge failed to provide Findings of Fact and Conclusions of Law concerning his rulings on custody although requested to do so.” The quoted statement is not accurate. At the time the court awarded custody, it made the following oral finding: “I do not feel, at this time, that Mrs. W. [the wife] has demonstrated the type of concern that would justify my placing the children with her.” Subsequently, as part of the formal judgment entry, the court found “that the Respondent [the husband] is entitled to the care, custody and control of said minor children and that their best interests will be served by such award of custody.”

The wife cannot legitimately complain of lack of any greater particularity by way of findings. Rule 73.01-l(b) requires only that a court trying a case without a jury make “findings on such controverted fact issues as have been specified by counsel.” The wife’s counsel never did request any particular findings on specified issues. His request was limited to the statement: “I would ask for a findings of fact and conclusions of law.” Beyond this the only request by the wife’s lawyer was the further statement, “Your Honor, I did ask for findings of fact and conclusions of law.” Immediately after the request just quoted, the court suggested “submit me proposed findings of fact and conclusions of law, and I will go from there.” The record does not show any proposed findings submitted on behalf of the wife nor any other further request in this regard. The wife’s first point has no merit.

II.

The wife anchors her position with respect to custody of the children in the legal presumption that all other factors being equal, the best interest of children of tender years is to be in the custody of the mother. However, that presumption is by no means conclusive, and each custody case must be decided as a factual matter on all of the evidence presented. In re Marriage of Bussman, 572 S.W.2d 228 (Mo.App.1978); In re Marriage of H.B., 559 S.W.2d 73 (Mo. App.1977); R.G.T. v. Y.G.T., 543 S.W.2d 330 (Mo.App.1976); Johnson v. Johnson, 526 S.W.2d 33 (Mo.App.1975).

In the present case there was evidence of several other relevant factors. By way of background, the evidence shows without dispute that the wife left her home and children in 1973 to make a trip to California with two truck drivers, at which time she was gone for a period of from about two weeks to a month. That might possibly be considered as closed ancient history, except for more recent conduct on her part of a somewhat comparable nature. Thus, after the final separation from her husband, she confessedly began living with her male friend on a regular basis in his apartment, and she continued to do so up to the time of the final hearing of this case. Along with the admission of this relationship, she brazenly stated in her testimony that she had no intention of marrying this man, although she introduced her children to him. Also to be considered is the fact that the wife has been pursuing part time employment at night as a disco dance instructor for which she is paid in part by an allowance for her bar bills. Although sexual misconduct has frequently been held not sufficient in and of itself to deprive a mother of the custody of her child or children, her morals nevertheless remain a pertinent factor which can and should be taken into account in determining whose custody will serve the best interest of the child. J.L.W. v. D.C.W., 519 S.W.2d 724 (Mo.App.1975); V.M. v. L.M., 526 S.W.2d 947 (Mo.App.1975).

The evidence also shows that during the period of time that the wife had custody of these children immediately after her separation from her husband, she neglected the children by leaving them with a young babysitter for extended periods of time. On some of these occasions the children had the babysitter call their paternal grandmother, they were crying and saying they had not seen their mother for a long period of time, that there was no food in the house and that they were hungry. In those situations the grandmother had to come to the rescue.

Moreover, after the husband had taken over custody, the wife failed to make known her whereabouts, and the husband was able to locate her address and phone number only by following her from her place of employment at a discotheque to the apartment of her male friend.

Still further, the wife made no effort to talk to the teachers of any of the children or participate in any of the school activities. There were considerable lengths of time during which she made no effort to see or inquire about the children. On many occasions when it had been arranged for her to pick up the children for visitation, the husband and his mother got the children ready, but the wife never appeared.

Placement of child custody turns in considerable measure on an evaluation of the qualifications of the respective parents, and as to this evaluation deference is due to the trial court. R.G.T. v. Y.G.T., supra; Shannon v. Shannon, 550 S.W.2d 601 (Mo. App.1977). Based on the evidence just summarized, the evaluation made by the trial court does not constitute an abuse of discretion.

The wife complains that the trial court failed to consider certain additional evidence which she tried to get before the court by means of a motion for new trial or to reopen the testimony. The evidence referred to cannot be considered because it was never placed before the trial court and does not appear in the transcript on appeal. What the wife seems to really be complaining about is the failure of the trial court to grant a new trial or to reopen the testimony; but such a complaint is not contained in the Points Relied On and therefore is not present for consideration.

With respect to this matter of custody, the wife has not shown that the trial court misstated or misapplied the law, the finding is supported by evidence and is not contrary to the weight of the evidence. That determination must therefore be affirmed under the standard of Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

III.

As her third point, the wife complains that the decree' made no stipulation as to which of the parties should pay debts and obligations incurred prior to the dissolution, and she contends that such a division is required by Section 452.330, RSMo 1978. She is mistaken in the-latter regard. Section 452.330 requires only that the court “divide the marital property.” A debt owed by the spouses does not constitute “property” owried by them. The failure of the decree to provide as to payment of debts is therefore not a fatal defect, although the better practice would be to do so and thereby reduce subsequent dispute and contention.

The existence and extent of debts does, of course, affect the fairness of the way in which assets are divided. That phase of the matter will be considered under Section IV of this opinion.

IV.

The wife’s final complaint concerns the distribution of property and the court’s declination to award her maintenance or attorney’s fees. With respect to property division, the wife received a TV set, a Malibu automobile and her personal effects. The husband received a truck which he used in his business, certain minor items of household furniture, an air conditioner, and a washing machine and dryer. The wife testified that she was willing for the husband to have the furniture for the use of himself and the three children. So far as the truck is concerned, it was subject to a heavy indebtedness which was being retired by the husband. The washer and dryer had been about to be repossessed for default in installment payments, and those payments had been assumed by the husband’s parents to prevent repossession. Award of those items to the husband was subject to his repayment to his parents. In addition, the husband was permitted to keep his separate tax refund for the year 1976; but this was offset by the fact that the wife had already received and retained her own separate tax refund for that year.

The division of these rather meager assets does not seem unfair, particularly considering that the husband has responsibility for housing and caring for the children. The court’s determination is entitled to af-firmance under the standard of Murphy v. Carron, supra.

With respect to the allowance of maintenance and attorney’s fees, that depends largely on the relative economic positions of the respective parties, with a broad discretion being accorded to the trial court. Hebron v. Hebron, 566 S.W.2d 829 (Mo.App.1978); In re Marriage of Galloway, 547 S.W.2d 193 (Mo.App.1977); S.G.E. v. R.L.J., 527 S.W.2d 698 (Mo.App.1975). The basic facts to be considered are that the husband makes $250 per week gross, has no savings, and has the obligation of caring for three children. The wife, although testifying to physical ailments, has a full time job with the U.S. Department of Agriculture as a data transcriber making $400 per month. She also has supplemental income from her evening occupation as a disco dance teacher. It is reasonable to assume that her living expenses are reduced to at least some extent by the fact that she lives in the apartment of a male friend.

There are debts to be taken into account. A joint judgment of $1,100 exists against the parties arising from foreclosure and sale of an automobile previously owned by them. That judgment is subject to credit for the amount received by the creditor bank at foreclosure sale, but the amount of that credit was not ascertained at the time of trial. There is an indebtedness on the husband’s truck, but that is his sole obligation. There is another loan due Western Auto, but the husband is also sole obligor on that obligation. There is a joint obligation on certain household furniture which had been taken over by the wife immediately after the separation of the parties, but that furniture had been subject to a theft for which some insurance recovery in an unascer-tained amount is being claimed. Finally, there were medical bills incurred by the wife, a substantial part of which were incurred after the separation.

A consideration of all the circumstances does not demonstrate an abuse of the court’s discretion. Its determination not to award maintenance or attorney’s fees must be affirmed under the standard of Murphy v. Carrón, supra.

Affirmed.

All concur.


text:
    Norma J. VINCENT, Appellant, v. Orval VINCENT, Jr., Respondent.
    No. 29972.
    Missouri Court of Appeals, Western District.
    June 29, 1979.

      Stanley B. Cox, Sedalia, for appellant.
    James T. Buckley, Brown & Buckley, Se-dalia, for respondent.
    Before HIGGINS, Special Judge, Presiding, SWOFFORD, C. J., and WELBORN, Special Judge.
   ROBERT R. WELBORN, Special Judge.

Appeal from judgment quashing execution and garnishment issued to collect child support under divorce decree.

Appellant, Norma J. Vincent, was granted a divorce from respondent, Orval Vincent, Jr., on June 21, 1967. Appellant was awarded custody of two minor children, Daniel Lee and Steven Allan. Under the decree as modified on October 23, 1967, respondent was ordered to pay appellant $110 per month for child support.

The older of the two children became 21 and married in 1971. In March, 1974, appellant obtained execution and garnishment to enforce payment of child support then unpaid. The respondent was discharged from accrued child support payment, pursuant to stipulation filed September 17, 1974, upon payment to appellant of $570.00. The amount paid was based upon support payment of $55 per month.

Thereafter, respondent paid appellant $55 per month for child support. No action was taken to amend the decree fixing the obligation of respondent.

On October 11, 1977, a general execution issued for collection of $2,970 alleged due appellant for unpaid child support. Respondent moved to quash the execution and garnishment in aid thereof on the grounds that there was no money owed appellant. A hearing was held on the motion, with appellant as the sole witness. Her testimony established the facts as above recited. The trial court held that by accepting less than $110 per month from the date of the emancipation of the older child and by failing to seek execution from September 17, 1974, until October 4, 1977, appellant had acquiesced in and accepted reduced payments.

In this court, the parties agree that, inasmuch as the decree here ordered payment of $110 per month to appellant for child support, the obligation to pay that sum is not affected by the fact that one of the children involved had been emancipated. Gordon v. Ary, 358 S.W.2d 81, 83[1, 2] (Mo.App.1962). Respondent in the trial court and here relies upon appellant’s acceptance of reduced payments for a period of years as “equities and circumstances” precluding her recovery of the full amount provided by the decree.

“That waiver by acquiescence may be interposed as a defense to an action brought by wife for arrearages in alimony or past due child support has been recognized in many jurisdictions. 24 Am.Jur.2d, Divorce and Separation § 719; 137 A.L.R. 884, 897-899 (1942) supplemented by 70 A.L.R.2d 1250, 1279-1283 (1960). Missouri has adopted the rule. Rodgers v. Rodgers, 505 S.W.2d 138, 145 (Mo.App.1974).” Karleskint v. Karleskint, 575 S.W.2d 845, 846-847[3] (Mo.App.1978).

However, standing alone, delay in demanding payment of child support or acceptance of a sum less than that owed does not preclude a claim for the full amount owed. Hart v. Hart, 539 S.W.2d 679, 682[7] (Mo.App.1976). Facts and circumstances such as present in Meyer v. Meyer, 493 S.W.2d 42 (Mo.App.1973), and Rodgers v. Rodgers, supra, and which were found to give rise to equitable considerations in favor of the parent obligated for support are not present in this case.

The fact that the emancipation of one of the children in this case might have provided a good ground for modification, favorably to respondent, of the support order does not give rise to equities which preclude appellant’s enforcement of the decree. “Parties to a divorce proceeding may not inter se ignore or disregard proper orders of judicial tribunals. Adequate procedures are available to modify, as needed, judgments of courts to meet the changing condition of divorced parties.” Hart v. Hart, supra, 539 S.W.2d at 682.

Judgment reversed and cause remanded with direction to overrule the motion to quash execution and garnishment.

All concur.