author: SHANGLER, Presiding Judge.

text:
    STATE of Missouri ex rel. Richard MATHER, Plaintiff-Appellant, v. William Kenneth CARNES and Maryland Casualty Company, Defendants-Respondents, and Grain Valley Airport Corporation, Defendant-Respondent, and J. Woody and Woody’s Flying Service, Defendants-Respondents, and Rufus Thrall, Third-Party Defendant-Respondent.
    Nos. KCD 27839, KCD 27860.
    Missouri Court of Appeals, Kansas City District.
    May 2, 1977.

      H. George Lafferty, Jr., Kansas City, Lafferty, Horowitz & Shurin, Kansas City, of counsel, for plaintiff-appellant and respondent Mather.
    Joe M. Williams, Associate County Counselor, Kansas City, for defendants and respondents William Kenneth Carnes and Maryland Cas. Co.
    J. Worthen DeYoung, Linde, Thomson, Fairchild, Langworthy & Kohn, Kansas City, for respondents J. Woody and Woody’s Flying Service.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SHANGLER, Presiding Judge.

This appeal comes from a jury verdict for plaintiff Mather on his claim for damages against defendant William K. Carnes, Sheriff of Jackson County, and surety Maryland Casualty Company, for failure to attach an aircraft under process ancillary to commencement of an action against one Thrall for the partition of a Beechcraft airplane.

The underlying partition suit was between Mather and Thrall [a nonresident] concerning the joint ownership of the craft then tied down on an apron at the Grain Valley Airport leased to one Woody and by him to Mather. A deputy sheriff [Shuster] undertook to attach the airplane under the process sued out by Mather, but thereafter Thrall unfettered the craft and removed it from the jurisdiction.

The suit went to trial on an amended petition which pleaded three counts: Count I was against Sheriff Carnes and surety Maryland Casualty and alleged the sheriff had attached the airplane, but negligently failed to keep it in his custody; Count II alleged that the Grain Valley Airport and Woody wrongfully surrendered the aircraft to Thrall despite full knowledge of the attachment levy and the promise by Woody to deliver up the property upon the request of the sheriff; Count III proceeded on the theory that the sheriff negligently refused to take reasonable steps to retake the airplane. The defendant Sheriff Carnes brought a third-party petition against Woody for indemnity over for any liability to the plaintiff Mather from the release of the aircraft by Woody to Thrall. Woody [both in the personal and corporate capacities by which he had been named in the litigation] in turn brought a third-party action against Thrall for any liability adjudged against him to Mather or Sheriff Carnes.

At the close of the evidence for plaintiff Mather, a verdict was directed for defendant Woody, and at the close of all the evidence, the third-party claim of the sheriff was also directed in favor of Woody. These determinations effectively removed Thrall from the litigation. The single issue which ultimately went to the jury was not a pleaded theory, but on an amendment to conform with the proof: that the defendant Sheriff Carnes [and his surety] had negligently failed to attach the aircraft. The defendant Sheriff submitted the issue of the contributory negligence of plaintiff Mather in particulars. The jury returned a verdict of $17,678.93 for the plaintiff against Carnes and Maryland Casualty, the only defendants to remain.

After the trial defendants moved for judgment notwithstanding the verdict in accordance with their motion for directed verdict, or in the alternative for a new trial, as authorized by Rule 72.01(b). The trial court did not rule the motion for judgment, but granted a new trial on grounds stated in paragraphs 22(c), 24(2) and 25 of the motion for judgment incorporated by reference into the motion for new trial. In reprise, the grounds of these paragraphs are: plaintiff Mather failed to prove substantial damages; the attachment and levy were validly made as a matter of law, or abandoned by plaintiff; and that plaintiff Mather was contributorily negligent as a matter of law. The parties cross-appealed: plaintiff Mather from the grant of a new trial, and defendant Carnes and Maryland Casualty from the failure of the court to enter judgment in accordance with their after-trial motion. For our purposes, we treat the failure to rule the alternative motion for judgment as a final order of denial of that request for relief. See, Newell v. Peters, 406 S.W.2d 814, 819[6] (Mo. App.1966).

At the outset, we place each litigant in a proper posture. The plaintiff Mather lost a favorable judgment by the grant of a new trial to the defendants and so was aggrieved and entitled to appeal that order of the trial court. The effect of the grant of new trial to defendants Carnes and Maryland Casualty, however, was to remove an adverse judgment from against them. The denial of the motion for judgment in such case, therefore, neither constitutes a final judgment within § 512.020, RSMo 1969, nor adversely affects or aggrieves them to give standing for appeal. Powell v. Watson, 516 S.W.2d 51, 52[l-3] (Mo.App.1974). Accordingly, we dismiss the appeal of defendants Carnes and Maryland Casualty.

The dismissal does not foreclose challenge to submissibility of the case for plaintiff, however, where preserved properly by after-trial motion [Schmittzehe v. City of Cape Girardeau, 327 S.W.2d 918, 920[1] (Mo.1959)] and where the record shows plaintiff cannot recover under the law and evidence, we will direct entry of judgment for defendant and spare another trial. Bailey v. Interstate Airmotive, 358 Mo. 1121, 219 S.W.2d 333, 336[3] (1949).

The grant of new trial rests solely on the ground that as a matter of law: plaintiff failed to prove damages; that an attachment was shown [or later abandoned by Mather]; that Mather was contributorily negligent. These rulings do not involve exercise of judicial discretion but only the applications of legal principles. We determine, therefore, not the propriety of a discretion, but only whether the judicial order rests on a valid or erroneous view of the law. Highfill v. Brown, 340 S.W.2d 656, 664[11] (Mo. banc 1960). The order for new trial postulates four grounds, that as a matter of law the evidence proved: [1] a valid attachment [2] abandonment of the attachment by Mather [3] no damages and [4] contributory negligence. The abandonment ground is premised on the two disparate reasons of ¶¶ 24(2) and 25 of the motion for judgment, and is ambivalent. The first reason [¶24(2)] holds that the attachment was abandoned before perfection by the failure of plaintiff Mather to propound interrogatories to a garnishee. The second reason [¶ 25] holds that the attachment was abandoned after perfection by the election of Mather to pursue other remedies to satisfy his judgment against Thrall. The first reason is logically cognate to the theory of recovery submitted — for if the plaintiff abandoned the attachment the sheriff cannot be held for that failure — and so requires our decision. The second reason, however, relates to conduct of the plaintiff after the attachment was perfected and so is altogether irrelevant to the submission — for if the sheriff validly attached, then the plaintiff fails on his only theory of recovery— that the sheriff failed to attach. Our review proceeds on this definition of the issue.

I

THE FACTUAL STATEMENT

The plaintiff Mather commenced a suit against nonresident Thrall to partition a Beecher aft airplane owned by them jointly. In order to subject the property to the jurisdiction of a Missouri court and to induce the appearance of Thrall, Mather flew the craft to the Grain Valley Airport in Jackson County, and ordered process of attachment to issue. Mather secured the plane with two standard locks — on the door and ignition switch — and another on the controls. He leased tie-down space for the plane for $15 per month from Woody, the manager, and retained the keys to all three of the locks. Thrall had separate keys to the door and ignition locks; Woody had no keys to the plane. Woody leased this area, the gas business, shop and office from the Grain Valley Airport Corporation. As he conceived it, Woody had no authority to keep the public out of the tie-down area. Those who leased tie-down space did not need permission to remove the plane or return it. Mather asked Woody to remove the batteries from the aircraft, but Woody was not certain he had done so. Mather made no other arrangements with Woody or anyone else at the airport about the plane nor did he tell Woody that Thrall was not to fly the craft away.

An affidavit of attachment was filed with the circuit court as to a described aircraft owned by nonresident Thrall. A letter of direction from attorney Horowitz for plaintiff Mather accompanied the affidavit with instructions that the attachment in aid of service issue for levy upon the Beechcraft airplane located at the Grain Valley Airport. The writ duly issued and, with a receipt form for the property to be taken, was delivered to Deputy Sheriff Shuster who was charged with the execution of such process. The testimony of the transaction then becomes shrouded in contradictions.

It was the testimony of Shuster that, as a matter of course in such matters, he telephoned the attorney to learn of any special directions for the attachment of the airplane, and specifically, whether the craft was to be removed. He was told by Horowitz that the plane had been made inoperable and wanted only that the deputy obtain a receipt for the property from the airport manager. Horowitz denied that he gave any instruction other than to confirm the location at the Grain Valley Airport and for Shuster to attach the plane.

Conflict also marks the testimony by Shuster and Woody as to what passed between them at the airport. Shuster testified that when he arrived there, he handed Woody — the only person in the vicinity — a copy of the attachment and summons with instructions not to release the airplane without permission from the office of the sheriff. He never touched the plane, but was close enough to identify the craft by its numbers. He then had Woody sign a receipt in his capacity as airport manager with the explanation: “[T]hat’s to keep the plane here until you get a release from the Sheriff’s office.” Shuster — faithful to his directions from attorney Horowitz merely to get a receipt because the plane was already inoperable — made no attempt to put locks on the craft, or to post it with attachment notice, or leave a copy of the receipt with Woody, or give him any other instructions. After Woody signed the completed receipt [which Shuster was not sure Woody read], Shuster left the airport.

Woody described this episode differently: Shuster came to the airport office lobby, pointed inquiringly at the twin-engine Beechcraft visible some hundred yards away, and Woody confirmed that was the Mather-Thrall airplane. Shuster then handed Woody some papers in a blank envelope and asked him to give the packet to Thrall. Woody never looked at the contents and had no idea an attachment was being served on the plane. Shuster then asked Woody to sign a receipt in blank and, to allay his reluctance, assured Woody that “[a]ll you’re saying is that the aircraft is here”. No notice was posted on the plane, nor did Shuster ever approach the craft. Neither Shuster, nor Mather, nor attorney Horowitz ever instructed him nor in any way indicated the plane was the subject of a law suit. Woody asserted that had he known he was to be responsible for the airplane he would never have signed the receipt; and had he been aware of the attachment, he would have stripped the aircraft by the removal of propellers or other means.

In resume, Shuster testified he delivered the writ of attachment to Woody, told him not to release the plane without permission from the Sheriff, and had him sign a receipt to that effect — all in accordance with the instructions from plaintiff. Woody testified he was handed some papers in an unmarked envelope which he never read, was asked to sign a blank receipt merely to show that the plane was at the airport, and was not told by Shuster that he was responsible for the plane or that it was under attachment. There is no dispute that Shus-ter posted no notice on the plane or added any locks or even touched it.

II

THE ATTACHMENT

The plaintiff submitted on the theory that the Sheriff had failed his duty to execute the writ of attachment. The jury found in favor of this recovery, but the trial court set aside the verdict and granted a new trial on a ground that a valid attachment was shown as a matter of law. In this determination we view the evidence and all permissible inferences in the light most favorable to the plaintiff. Rodgers v. Seidlitz Paint and Varnish Company, 404 S.W.2d 191, 197[3, 4] (Mo.1966).

An attachment is a purely statutory remedy, ancillary to the main action, and provides a summary and anticipatory method to impound the assets of a defendant to facilitate the collection of a judgment against him. Lubrication Engineers, Inc. v. Parkinson, 341 S.W.2d 876, 878[6, 7] (Mo.App.1961); Anderson on Sheriffs, Coroners, and Constables, § 22, p. 236 (1941); 7 C.J.S. Attachment § 1, p. 185. Where the defendant is nonresident, attachment procedure serves the additional purpose to compel that person to submit to the jurisdiction of the court upon pain of forfeiture of the sequestered property. State ex rel. Auchincloss, etc. v. Harris, 349 Mo. 190, 159 S.W.2d 799, 805[7-9] (1942).

The attachment procedure is defined in Rule 85 and counterpart Chapter 521, RSMo 1969. Rule 85.21(d) which rescripts § 521.-170(4) provides:

When goods and chattels, money or evidences of debt are to be attached, the officer shall take the same and keep them in his custody, if accessible; and if not accessible, he shall declare to the person in possession thereof that he attaches the same in his hands, and summons such person as garnishee.

The levy of the writ of attachment on personal property under these procedures places the property in custodia legis. The levy required by law means actual seizure of the property by the officer charged with the execution of the writ. Such a compliance has been defined in our earliest law [Shanklin ex rel. Wetzler v. Francis, 67 Mo.App. 457 (1896), l.c. 462]:

The actual seizure of property is alone the basis for an attachment and the jurisdiction of the court. The officer must, under the writ, take the property into actual custody and hold it until it is seized under execution after judgment. When it is capable of manual delivery and he does not take it into possession, he acquires no special property therein. He must assume dominion over it. He must not only have a view of it, but he must assert his title to it by such acts as, but for the writ, would make him liable as a trespasser. His custody must be such to exclude that of the owner.

The actual seizure required by the statute for a lawful levy, however, does not always mean a physical manucapture of the goods, but must amount to some act which, but for the protection of the writ, would subject the officer to an action of trespass. As expressed in the early case Douglas v. Orr, 58 Mo. 573 (1875) at 576: [A]ctual possession . . . can only be

done by manual acts, or by an oral assertion that a levy is intended, and which is acquiesced in by those who are present and interested in the question. A levy cannot rest in mere undivulged intention to seize the property. Something more is required. There must be possessory acts to indicate a levy, or it must be asserted by word of mouth, so that what is thus done by the officer, if not justified by the process in his hands, will make him a trespasser.

Thus, the mere declaration of an officer that he comes to levy on a stock of goods, without more, does not assume dominion over the property nor interfere with the title of the owner, and so does not constitute an actual seizure. Hobbs v. Williams, 175 Mo.App. 409, 162 S.W. 334, 336[6] (1916).

The levy of the writ of attachment not only serves to establish the special property interest of the officer in the goods, but also puts the property out of the control of the attachment debtor and closes the goods to subsequent levy of another creditor. 70 Am.Jur.2d § 33, Sheriffs, Police and Constables. After levy under attachment process, the officer may deliver the property to a third person and take his receipt and promise of redelivery upon request. The receiptor, on principles of contract, becomes the bailee of the officer and the possession of the receiptor remains the possession of the officer. McDonald v. Loewen, 145 Mo. App. 49,130 S.W. 52, 55[8] (1910); Talbot v. Magee, 59 Mo.App. 347, 353 (1894); Anderson, op. cit., § 522. This custom of convenience saves the litigants the expense and trouble which attends the safekeeping of the property pending the proceedings and at the same time continues the lien of the attachment levy. 6 Am.Jur.2d Attachment and Garnishment, § 500.

Although a lawful levy implies a seizure, the character of the property will determine the practical means open to the officer to place the property within his power and beyond the control of the attachment debtor. “[W]here the character of the property is such that it may be taken possession of and removed, the officer should do so, or if left in place [because ponderous or immovable], he should either remain with it, or place some one over it as his deputy or bailee, so as to exercise exclusive dominion and control of it, and to notify the public not to deal with it. But regard is always had to the character and situation of the property.” Bilby v. Hartman, 29 Mo.App. 125,135 (1888). Thus, the officer must take that degree of manual possession which the nature of property renders practicable. If bulk or immovability prevents actual seizure, the officer must take what possession he can accompanied by some notorious act which declares the special property vested in him by the levy. Hopke v. Lindsay, 83 Mo.App. 85, 88 (1899). Whatever the variety of circumstance, however, the doings of the officer cannot amount to a valid attachment unless the articles are taken into his actual custody, or are placed under his exclusive control. Freeman on Executions, Vol. 2 (1900). Russell v. Major, 29 Mo.App. 167, 172 (1888).

The provisions of Rule 85.21(d) embody these general principles including the rule that where personal property is capable of manual delivery the officer must take the property into his actual possession. The parties understand this rule to mean that goods are accessible only when capable of manual delivery. From this premise plaintiff Mather argues that Shuster was under a duty to take the Beechcraft into his custody by the application of another lock, removal of parts, or similar means. He concludes that the failure of Shuster to take the plane into his custody by such means was evidence that Shuster treated the airplane as inaccessible, and so breached his duty to summon Woody as a garnishee as required to perfect levy upon goods of that character. The defendants Carnes and Maryland Casualty respond that since the airplane was already locked and immovable, all that was left for Shuster to do was to declare the attachment. Furthermore, absent instructions from the plaintiff, the officer has no duty under the rule to summon a garnishee.

To the extent these positions rest on the assumption that the accessible-non-accessible dichotomy of the rule distinguishes goods capable of manual caption and delivery from those which because of bulk or immovability cannot be so managed, they are mistaken and irrelevant to the determination of whether there was a valid attachment. The distinction the law makes between an accessible and non-accessible chattel for purposes of a valid attachment levy is this [ Westheimer & Sons v. Giller, 84 Mo.App. 122 (1900), at 216]:

[T]hat notwithstanding personal property may be tangible and in the view of the officer and subject to manual possession, yet if it is in the possession of a third party claiming some right or interest in it, it is not so accessible in the sense of the statute [and rule] as to prevent a legal garnishment.

This same view is held by the authoritative Freeman on Executions, Vol. 2, p. 1475 (1900):

Articles of personal property may be capable of manual delivery, and yet it may be improper for the officer to take them into his possession, because to do so, interferes with the rights therein of persons other than the judgment debtor, as, where it is pledged to the possessor, or he holds it under a chattel mortgage.

See, also, McGarry v. Lewis Coal Co., 93 Mo. 237, 6 S.W. 81 (1887).

Thus it is the interest claimed in the property by a third party in possession [other than the attachment debtor] and not the physical characteristics of the chattel which brings the garnishment procedures of Rule 85.21(d) into operation as a prerequisite for jurisdiction over the res. As the authorities agree, the requirement of the rule that the officer shall take accessible property and keep it in his custody does not always mean manucaption and removal. It means, rather, that the officer must take steps to remove the property from the control of the attachment debtor, and make his dominion and custody to exclude that of the owner by whatever means the character of the property allows. Shanklin ex rel. Wetzler v. Francis; Douglas v. Orr; Russell v. Major, all supra; Anderson, op. cit. p. 244.

In this prospective, it is clear that garnishment proceedings were not required to subject the aircraft to the jurisdiction of the court. The property was accessible and subject to levy of the sheriff by an exercise of custody. The parties agree — although to different ends — that Woody had no posses-sory interest in the airplane. The defendant Carnes asserts this fact to justify his failure to summon Woody as garnishee, while Mather uses it to show there was no attachment. The inaccessible provision of Rule 85.21(d) assumes that someone other than the attachment debtor has actual possession of the property. As it was, only Mather and Thrall had such an interest and the purpose of the attachment was to prevent Thrall from removal of the craft from the jurisdiction pending the partition suit. There was no one other than the plaintiff himself, therefore, who could qualify as garnishee — and to require his summons would be an absurdity.

We conclude that the absence of a garnishment does not bear on the decision of this litigation, either as evidence of abandonment or the failure to attach, as the defendants alternatively propose.

We determine also that the evidence shows conclusively there was no valid attachment of the aircraft, not because the garnishment failed, but because Shuster did no act that amounted to a levy. The evidence shows no dispute that other than view the craft, Deputy Shuster took no other step for actual seizure or — because of the bulkiness — symbolic possession of the property. Shuster posted no notice of attachment on the plane, nor added any locks, nor removed any part, nor did any other act which excluded the custody of the attachment debtor. The delivery of enclosed papers to Woody and his signature on a receipt which promised return of the plane upon request of the Sheriff are the only attempts by Shuster to bring the property under his authority.

It is within the power of an officer, after levy under executory process, to deliver the property to a third person as keeper and take a receipt for redelivery. Anderson, op. cit., § 522. In such case, however, the possession of the receiptor derives from the prior possession of the officer — which comes from a levy, actual or symbolic. Shanklin ex rel. Wetzler v. Francis, supra, l.c. 465. But where, as here, the officer made no levy and Woody had no possession to give, the officer had none to receive from him under the writ and none to deliver to his keeping.

The evidence shows clearly that Woody never exercised any physical control over the plane, nor had any right to do so. Mather flew the plane to the airport, tied it down himself, and locked it. Mather and Thrall both had keys to two of the locks but Mather had the only key to the lock on the controls. Woody had no keys to the plane. He rented tie-down space for planes, space he himself leased from the Grain Valley Airport. Neither Woody nor any one else at the airport had any control over the movement of the aircraft to and from the airfield. Woody had no claim check system; any one with access to the keys could remove a plane from the area without his permission.

In effect, then, Mather and not Woody-had possession of the plane, since he retained all means to control the movement of the craft.

Mather merely leased space from Woody, much like an automobile owner rents parking space by the month and keeps the keys to his car. The parking lot owner does not become the bailee of the vehicle because there is no delivery of possession to him from the owner of the car. In such case the operator of the lot has no right to exclude the owner of the car or anyone else who comes with the keys. Weinberg v. Wayeo Petroleum Company, 402 S.W.2d 597, 599[4-6] (Mo.App.1966). Similarly, neither did Woody have any right to control the airplane. The evidence shows conclusively that Woody was not bailee for Mather, and without some delivery of control of the plane to him by Shuster, he could not become bailee for the Sheriff either. The declaration by Shuster that he attached the airplane in the hands of Woody was only a paper levy and without legal effect because Woody had no possession to give. In turn, in the absence of some public, open, unequivocal — or even symbolic — act of dominion, Shuster had no custody of the plane and could make no delivery to Woody. That he required a receipt was not an act of dominion; first, the officer must have sufficient possession of the goods before he can entrust them to another. Talbot v. Magee, 59 Mo.App. 347, 352 (1897); Mickelson v. Williams, 50 Wash.2d 402, 312 P.2d 656, 658[l-3] (1957); Anderson, op. cit., §§ 522, 523.

As a matter of law, the airplane was accessible to the levy of the officer within Rule 85.21(d) but he failed his duty to take the property into custody under the writ of attachment. The verdict for plaintiff on that submission was the only acceptable response to the evidence, and the order for new trial which declares a contrary view is erroneous.

Ill

CONTRIBUTORY NEGLIGENCE

At the trial the defendants responded to the claim that Shuster neglected his official duty by evidence that his conduct under the writ was directed by counsel for Mather, and so defendants were discharged from liability for any failure to make a levy. This theory of defense was couched in terms of contributory negligence and was submitted by Instruction No. 5:

Your verdict must be for Defendant Carnes if you believe:

First, plaintiff or his attorney either: instructed Deputy Sheriff Shuster as to the procedures to be followed in attaching the airplane, which instructions Deputy Shuster followed using ordinary care, or assumed the responsibility for the custody and keeping of the airplane, or failed to instruct Deputy Shuster for the disposition of the airplane, or made it impracticable for Deputy Shuster to take control of the airplane, or told Deputy Shuster that the airplane would be safe and secure at the Grain Valley Airport in the expectation that he would rely on such information, and
Second, the conduct of the plaintiff or his attorney in any one or more of the respects submitted in paragraph First was negligent, and
Third, Such negligence of plaintiff or his attorney directly caused or directly contributed to cause the damage plaintiff may have sustained.

As a rule, the duty of the sheriff to do the act sought by the writ is ministerial according to its terms and does not allow him discretion. 70 Am.Jur.2d Sheriffs, Police and Constables, § 31. The officer is bound to serve the writ, and his failure to do so makes him prima facie liable. State ex rel. Planet P. & F. Co. v. Harrington, 44 Mo.App. 297, 300 (1891); 80 C.J.S. Sheriffs and Constables § 61. The officer who executes according to the mandate of a writ is agent for neither party but a surrogate of the law. Sorrells v. Irion, 216 S.W.2d 1021 (Tex.Civ.App.1949). A party who orders a writ of attachment has a right to direct how the levy is to be done and the property cared for, but he is under no duty to do so. 7 C.J.S. Attachment §§ 214, 281; State v. Clark, 2 Terry 246, 20 A.2d 127, 130[15-17] (Del.1941). Where the plaintiff does give directions, compliance by the sheriff relieves him of liability to the plaintiff. 80 C.J.S. Sheriffs and Constables § 54; Citizen’s National Bank v. Loomis, 100 Iowa 266, 69 N.W. 443 (1896). Where the officer attempts to escape liability on the ground that he complied with these instructions, he has the burden of proof as to them. 80 C.J.S. Sheriffs and Constables § 54, p. 232.

Instruction No. 5, in effect, exonerates the Sheriff from failure of the deputy to execute the writ of attachment according to its terms on the theory that Shuster followed the instructions of the plaintiff or his counsel for that purpose. It was an issue [that his deviation from the mandate of the writ was so justified] on which the defendant Sheriff had the risk of nonper-suasion, and so was properly submitted as an affirmative defense.

The initial clause of paragraph First of Instruction No. 5 postulates that plaintiff Mather was negligent and not entitled to recover if the jury find that Shus-ter merely followed the directions of attorney Horowitz for the service of the writ. The evidence on this issue was in direct conflict: Shuster testified that before he undertook service he telephoned Horowitz for reassurance that the airplane was still at the Grain Valley Airport and to learn whether the attorney would accompany him for the levy. According to Shuster, Horowitz told him the airplane remained at the airport, that other occupations kept him from attending him, and that the airplane had already been disabled so that Shuster need only serve the attachment writ upon

Woody and declare to him the levy of the aircraft. Horowitz denied any directions other than to confirm the presence of the airplane and for the deputy to attach that property under the writ. This made up a jury issue which was decided for the plaintiff. The new trial order of the court which found that the plaintiff was contributorily negligent as a matter of law under Instruction No. 5 assumed that the evidence of the Sheriff was true and that of the plaintiff untrue, an erroneous conclusion of law in the face of the disputed evidence. There was a sufficient basis in proof for the jury verdict for plaintiff on this issue.

The remaining four clauses of paragraph First of Instruction No. 5 either misstate the law or find no support in the evidence. There was no proof, even from the defendants, that Mather or his counsel assumed responsibility for the custody and keeping of the airplane or made it impracticable for the deputy to take control of the property, or that the craft would be safe and secure at the airport — unless such can be inferred from the evidence that Horowitz had informed the deputy that the airplane had already been disabled. Nor, as Instruction No. 5 would have it, does the law require a plaintiff who has the aid of a writ of attachment to instruct the officer how the process shall be executed or how the property shall be kept. 70 Am.Jur.2d Sheriffs, Police and Constables, § 31. The duty of the sheriff under a writ is fixed by substantive law, and once process comes into his hands, he must execute the writ according to its mandates. Nor will custom or practice [as defendants undertook to show] override the requirements of the law. State v. Clark, 2 Terry 246, 20 A.2d 127, 139[9, 10] (Del.1941). It is only when the plaintiff — who had the protection and benefit of the writ — directs the sheriff to a course other than the law requires under it, that the officer is relieved from liability for failure to execute the process according to its terms. That was the essential issue contended by the defendants and submitted by Instruction No. 5. It was a question, we have said, which was disputed by the substantial evidence of the parties and which was concluded for the plaintiff by the jury verdict. The trial court erred in its determination that the issue was concluded for the defendants as a matter of law.

IV

DAMAGES

The final ground for the grant of new trial sustained ¶¶ 22(c) and 25 of the motions for judgment and new trial which contends that plaintiff Mather failed to prove damages as a matter of law. The arguments on this element of the case assume three aspects: (1) that plaintiff has no cause of action against Sheriff Carnes and so is entitled to no damages; (2) if a cause of action is assumed, plaintiff has proved no damages and is at best entitled to nominal compensation; or (3) alternatively, damages are limited to the $9,000 to $12,500 interest Thrall had in the airplane.

The first assertion suggests that the failure of Mather to post an attachment bond in the partition action after Thrall on two occasions submitted his person to the jurisdiction of the court resulted in dissolution of the attachment by operation of Rule 85.04 and an abandonment of any cause of action against the Sheriff for failure to perfect a remedy no longer available to the plaintiff.

Rule 85.04 [and § 521.050] provides that when any writ of attachment has been issued against a nonresident and the plaintiff has given no bond, the attachment shall be dissolved as of course, and the . . . goods ... of the defendant taken or levied upon under such writ of attachment shall be released therefrom upon the defendant entering his appearance and filing his answer to the merits of the case .

unless the plaintiff shall file a bond in the sum and within the time provided by the rule. The defendants contend that Thrall submitted himself to the jurisdiction of the court twice during the pendency of the partition action; once by his Motion to Quash Service, and again when he was personally served within the venue as a defendant in that action.

Mather sued Thrall for partition of the aircraft but was unable to obtain personal service upon him because Thrall was then nonresident. The affidavit of attachment in aid of service then caused a writ of attachment to issue for execution upon the aircraft then within the venue of the suit. In due course, a summons and attachment petition were served upon Thrall by mail to his Texas address. Thereafter a document with the caption “Motion to Quash Service” was received in the cause by the circuit clerk of the court where the partition pended. The signature of attorney upon that paper, as the parties do not dispute, was that of a Pecos, Texas, practitioner. That document sought quashal of the service on the ground that Thrall “was not served with a Citation as is provided by law but received a notice in the United States mail”. After signature, an appendix in irregular form recited that subject to the action of the court on the motion to quash service, the defendant Thrall moved for judgment on his denial of every allegation of the petition.

The defendants Carnes and Maryland Casualty contend that this pleading was an entry of appearance by Thrall in the partition action and so operated to dissolve the attachment in the absence of bond by Mather as provided by Rule 85.04.

This argument is flawed in several particulars. We assume the document on file, however imperfectly expressed, undertook to join the objection to the jurisdiction over the person with a denial of the merits of the claim. This procedure is sanctioned by Rule 55.27 and supplants the technical practice whereby a defendant who disputed the jurisdiction of the court over his person was required to make a special appearance for that purpose or risk waiver of the objection by any act or omission which tended to benefit the defendant in the litigation. [See the informative discussion of the new procedure rationale in State ex rel. Dennis v. Snodgrass, 501 S.W.2d 553 (Mo.App.1973) and Greenwood v. Schnake, 396 S.W.2d 723 (Mo.1965).] The clear purposes of Rule 55.-27, therefore, are to limit successive motions—and so encourage a parsimony of suit time—and to protect against the snares of technical pleading—and so diminish the risk of unintended waiver. [See Vol. 2A Moore’s Federal Practice (2d ed. 1975), p. 23.19, ¶ 12.12; comment on Federal Rule 12(b)—comparable to our Rule 55.27; see, also, Greenwood v. Schnake, supra, l.c. 726.]

It is evident, therefore, that the very purpose of the joinder of motion to the jurisdiction and responsive pleading to the merits allowed by Rule 55.27 is to keep the jurisdictional dispute vital and uncompro-mised even to final determination on appeal. State ex rel. Dennis v. Snodgrass, supra, l.c. 558; Greenwood v. Schnake, supra, l.c. 726. As it happens, in this case the motion to quash—other than the bare pleading—was never suggested to the court or pressed to a ruling. The joinder of the responsive pleading to the merits with the motion to the jurisdiction did not constitute an appearance within the meaning of Rule 85.04 so as to require the plaintiff to post a bond to continue the attachment.

We conclude also that the Motion to Quash submitted on behalf of the defendant in the litigation by an attorney not a member of the Missouri bar and unaccompanied by the appearance of a local counsel violates Rule 9.03 and suffices, without more, to nullify the Motion to Quash Service. 7 C.J.S. Attorney and Client § 16b; McKenzie v. Burris, 255 Ark. 330, 500 S.W.2d 357, 359[1] (1973); Niklaus v. Abel Construction Company, 164 Neb. 842, 83 N.W.2d 904, 911[11-12] (1957). That the question of professional qualification to act as counsel for a party to the litigation was not raised by the plaintiff until bis appeal and brief does not diminish the power of a court to act, even on judicial notice alone, on a matter so vital to the public protection. Curry v. Dahlberg, 341 Mo. 897, 110 S.W.2d 742, 746[l-3] (banc 1937); Bennie v. Triangle Ranch Co., 73 Colo. 586, 216 P. 718[1] (1923); Colton v. Oshrin, 155 Mise. 383, 278 N.Y.S. 146, 147 (1934).

The defendants argue the attachment was dissolved by the operation of Rule 85.04 yet another time, when Mather obtained personal service on Thrall within the jurisdiction. There can be no doubt that Thrall was finally subjected personally to the judgment of the court in December of 1971, but only after he had removed the airplane from Missouri into Texas. By that time the cause of action against the Sheriff for nonperformance of duty under the writ of attachment had already accrued to Mather, and the subsequent personal appearance of Thrall in the partition suit could not mitigate for the loss of goods absolutely available for the satisfaction of judgment.

The defendants further argue that the present cause against the Sheriff is premature because begun before final judgment in the partition suit—and so before the extent of the ultimate liability for nonperformance of the writ was determined— and before plaintiff made any initiative for the Sheriff to recover the plane from Texas. These arguments are of no effect. The judgment in the partition suit was entered before the trial of the action against the Sheriff, and so that element of his liability was already established. Furthermore, the plaintiff was under no requirement to regain the asset lost by negligence of the Sheriff. Nor, as the defendants suppose, was there a duty on the plaintiff after judgment in the partition suit to seek an order for the return of the airplane for sale, if for no other reason than because the property was never taken' by the Sheriff into custodia legis. This entire congeries of argument assumes a valid levy, a conclusion which the evidence does not allow.

Point (2) assumes the cause of action by Mather against the Sheriff but contends he proved no damage to the aircraft by its removal to Texas. This argument misconceives altogether the nature of the cause of action which Mather asserts. The plaintiff does not due for damage to property seized under a writ and then injured by some intermediate act [See, 80 C.J.S. Sheriffs and Constables § 78], but for the failure of the officer to take the property into custody altogether. That is, the plaintiff sues because the airplane has been placed beyond his reach for the satisfaction of the partition judgment against Thrall. The extent of liability for failure to execute process is the amount of the judgment debt or the value of the property, if that be less. 80 C.J.S. Sheriffs and Constables § 78, pp. 274-5. There can be no doubt that an airplane in Texas which was meant by the writ to be sequestered and kept as the special property of the sheriff for satisfaction of an anticipated judgment was lost to the plaintiff by that removal.

The third point on damages contends that the damage award was a duplication and excessive. The jury verdict was returned in response to MAI 4.01 which directs an award in “such sum as you believe will fairly and justly compensate the plaintiff for any damages you believe he sustained as a direct result of the occurrence mentioned in the evidence”. The verdict for plaintiff was for $17,678.93 and rests on this evidence: At the time of default judgment against Thrall in the partition suit, the plane was worth $23,000. Mather was owed $9,438.43 by Thrall on the plane and was given a money judgment in that amount, which left $13,561.57 to be divided equally between the two as the result of the partition sale — $6,780.78 to each owner. Thus at the default judgment Mather was entitled to $16,219.11 plus interest for a total of $17,678.93. The defendants complain that the verdict amounts to a double recovery because the award merely duplicates that already allowed in the partition action against Thrall.

There is no double recovery here. It is an established principle that there may be only one satisfaction for one injury [Haley v. Byers Transportation Company, 394 S.W.2d 412, 416[5, 6] (Mo.1965)]; but as long as the judgment for that injury remains unsatisfied, all means given by law are open to the creditor for requital of that debt. 49 C.J.S. Judgments § 585, p. 1071. That it was open to Mather to enforce the judgment against Thrall for his adjudicated interest in the airplane, did not preclude his action against the Sheriff for the same damages. See 80 C.J.S. Sheriffs and Constables § 146e. And if Mather succeeds in enforcement of the judgment against surety Maryland Casualty Company for the default of the Sheriff, the defendant surety becomes subrogated to any right Mather has against judgment debtor Thrall. These principles of law prevent a double recovery. 83 C.J.S. Subrogation § 60, p. 711.

The parties also contend over the measure of damages recoverable against the sheriff in such an action. They both agree that an officer who negligently loses control of property for levy becomes liable to the extent of the injury. The explicit standard for damages in such cases, recognized in state to use of Armstrong v. Langdon, 57 Mo. 353, 356 (1874), is given in 80 C.J.S. Sheriffs and Constables § 84, p. 285:

A sheriff who voluntarily releases or negligently loses control of property levied on so that it is not available for the satisfaction of an execution is liable to the execution plaintiff for the amount of the debt and costs unless the property seized was not sufficient to satisfy the debt, in which case the measure of damages is the value of the property.

The defendants contend this principle limits the liability of the Sheriff to only the one-half interest Thrall had in the plane and does not extend to his entire indebtedness to Mather adjudicated by the partition judgment — that is, the one-half interest in the craft plus outlays for the plane made by Mather for Thrall during their joint ownership. This contention overlooks that an attachment in aid of service not only serves to induce the defendant to appear for personal judgment but also impounds the property for plaintiff in anticipation of satisfaction of the judgment debt. It was not the Thrall interest in the plane which was lost to plaintiff from failure of the Sheriff to attach, but rather the $7,678.93 Mather interest adjudicated by the partition judgment. In sum, the value of the Mather claim in the airplane was his measure of damage against the Sheriff, and it was this value which the jury awarded as damages. This verdict was returned on evidence by the owner Mather as to the value of the airplane, and so the return of compensation was based on competent and sufficient proof. Coach House of Ward Parkway, Inc. v. Ward Parkway Shops, Inc., 471 S.W.2d 464, 473[6, 7] (Mo.1971).

The final contention on this point asserts that the damages instruction given in the form of MAI 4.01 which directs compensation to plaintiff for damages sustained as a direct result of “the occurrence mentioned in evidence” does not sufficiently identify for which occurrence the Sheriff is to be held liable and so misleads and confuses. There may be cases where the evidence shows two causes for the injury to the plaintiff but only one of which was due to the conduct of the defendant. In such cases, the damages instruction must be modified in accordance with MAI 4.01 Notes on Use to describe the occurrence produced by the defendant. Jurgeson v. Romine, 442 S.W.2d 176, 178[4, 5] (Mo.App. 1969). The posture of the proof here does not require that modification. The only occurrence to be found by the jury under the theory of the instructions was whether or not Shuster failed to attach the airplane under the writ. This point is denied.

VI

OTHER NEW TRIAL GROUNDS

We have concluded that the trial court erroneously ordered a new trial on the grounds specified in his order. The defendants asserted other grounds for such relief in their post-trial motions which the trial court did not allow. They now reassert them on appeal to support the new trial order. As respondents, the Sheriff and Maryland Casualty may defend the action of the trial court by grounds other than those specified by the court, provided they were properly alleged in the motion for new trial and preserved. Overton v. Tesson, 355 S.W.2d 909, 913[4 — 6] (Mo.1962). These conditions for our review have been met here.

The first of these points contends that the plaintiff, by failure to bring the action in the name of the State, did not comply with the mandate of § 522.020 RSMo 1969, that any person who is authorized to prosecute a suit to his own use on any official bond shall sue in the name of the state. There is no doubt that the action commenced by plaintiff Mather against Carnes and Maryland Casualty for the neglect of the Sheriff is authorized by § 522.010, so that the plaintiff falls within the contemplation of § 522.020. It is the contention of the defendants that because § 57.020 requires every Sheriff in the state to give bond to the state with sufficient surety, the State of Missouri is the obligee of the bond and the only real party in interest. They conclude that this defect in pleading is fatal to the cause of action by Mather.

We believe that the argument of real party in interest misleads and confounds the realities which this action presents. The real party in interest provisions of Rule 52.01 and § 507.010 are intended to enable those directly interested in the subject matter and entitled to reap its fruits to maintain the action. Holt v. Myers & Black Contracting Co., 494 S.W.2d 430, 435[1] (Mo.App.1973). There can be no doubt that § 522.010 which permits persons injured by the neglect of any officer to proceed against him and his sureties was designed to redress private injury. §§ 522.-010-522.080. That is to say, in such actions, the person who seeks redress is the real party in interest.

At common law only the obligee named on the bond of a public official could maintain an action on that obligation. 67 C.J.S. Officers § 174. Our statutes have since enabled any person injured by the neglect of an official to proceed to suit in the name of the state to his own use. §§ 522.020-522.080. The law treats such a suit on an official bond as a private action which results in a private judgment and incurs private costs. § 522.080. The role of the state as obligee on the bond is only nominal in such proceedings. The earliest cases [State to use of Russell v. Moore, 19 Mo. 369 (1854) and Meier v. Krum, 21 Mo. 112 (1855)] treat the state as a trustee to whom the obligation of the bond is payable for the benefit of those injured by official misconduct. The failure to join the state in this nominal status in the proceeding to the use of the injured person was a defect in party-plaintiff and subject to correction by the extant rules of pleading. Under the archaic procedure of those earliest cases, the defect was raised by demurrer and dismissal of the action could result. These decisions are reported with such brevity that they fail to define at what stage of the litigation this issue was raised. See, e. g., Meier v. Krum, 21 Mo. 112 (1855) and Sickles v. McManus, 26 Mo. 28 (1857).

The more recent cases on the subject treat the failure to sue in the name of the state as a defect of party on the face of the petition, subject to the general rule that such a defect is waived by an answer to the merits. State ex rel. Jones v. Mallinckrodt Chemical Works, 249 Mo. 702, 156 S.W. 967, 974[2, 3] (Mo.1913). In that case, objection to failure by a city attorney to sue in the name of the state on an action to revoke a corporation charter was held waived by the answer of defendant on the merits. The failure to raise a claim of defect of parties by proper pleading, formerly by demurrer or answer, and now by motion or answer, waives that objection. Ray v. Nethery, 255 S.W.2d 817, 819[3, 4] (Mo.1953). It is noted that the defendants Sheriff and Maryland Casualty first raised the nonjoinder issue of the state as a party-plaintiff by oral motion to dismiss at the close of the Mather evidence. The objection came too late; the rule of waiver of defects of parties applies with equal effect to actions brought by an aggrieved party on an official bond under §§ 522.010-522.150.

Finally, the defendants contended in the motion for new trial, and now on appeal, that Instruction No. 3 which directed a recovery for Mather if the jury find

First, that the defendant Carnes was directed to attach the airplane, and
Second, that defendant Carnes failed to attach said airplane, and
Third, that defendant Carnes was thereby negligent . . .

submitted an abstract statement of law and not propositions of fact for determination by the jury. The argument on this point does not condemn the instruction for violation of the general principles which underly MAI but on the contention that, as a matter of law, the evidence proved an attachment and so the submission was error. We need not respond again to a subject already amply treated, nor do we undertake to reconstruct the propositions of Instruction No. 3 after the precepts of MAI. The point does not call for such a response and our decision on the evidence precludes it. As a matter of law, there was no attachment: the parties do not dispute that Shuster made no physical levy on the aircraft — by post of notice, addition of a lock, removal of a part, or any other such means. The attempt by Shuster at a symbolic levy by declaration of attachment of the plane in the hands of Woody was not effective simply because Woody had no property in his possession subject to attachment under the writ. There was no act done under the writ which was a levy; Shuster never put the airplane within the dominion of the law.

The only aspect of the attachment transaction which gave rise to a factual dispute was whether the conduct of the Sheriff under the writ was directed by counsel for Mather. If so, those special instructions to serve the papers on Woody and declare the attachment in his hands superseded the mandate of the writ and the failure to levy was attributable to Mather himself. This was the very fact issue asserted as a defense by the Sheriff and Maryland Casualty by contributory negligence Instruction No. 5 and rejected by the jury.

The judgment is reversed and remanded with directions that the trial court enter judgment for plaintiff according to the verdict of the jury.

All concur.

      . The statutory definition of levy given in § 513.010, RSMo 1969, relates to executions and, applied in pari materia to § 521.170(4), RSMo 1969, and Rule 85.21(d), also to writs of attachment. Shanklin, supra, (1896). In terms, the definition reads:
      The word “levy”, as used in this chapter, shall be construed to mean the actual seizure of property by the officer charged with the execution of the writ.

      . Rule 85.21(d): When goods and chattels . are to be attached, the officer shall take the same and keep them in his custody, if accessible; and if not accessible, he shall declare to the person in possession thereof that he attaches the same in his hands, and summons such person as garnishee.
      Rule 85.21(b): It shall be the duty of the . . officer, when directed by the plaintiff, his agent or attorney, to summon garnishees in the manner set forth in the Rules relating to garnishment . . . . (Emphasis supplied.)

      . No comparable submission was given for defendant Maryland Casualty Company.

      . Instruction No. 5 casts this defense in terms of contributory negligence, perhaps induced by Instruction No. 3 which directs recovery for plaintiff for negligent failure to execute the writ of attachment. The defense theory was more properly submissible as an affirmative [third method] converse which postulates an ultimate issue supported by independent evidence which, if true, defeats the claim asserted by plaintiff. See, MAI 33.01 Converse Instructions — General Comment; and also MAI 33.05.


source: Caselaw Access Project

author: KELLY, Presiding Judge.

license: Public Domain

text:
    STATE ex rel. Doyle George REECE, Relator, v. Hon. Robert Lee CAMPBELL, Respondent.
    Nos. 37810, 37839.
    Missouri Court of Appeals, St. Louis District, Division Three.
    May 3, 1977.

      Courtney Goodman, Pros. Atty., James J. Cook, Asst. Pros. Atty., Clayton, for respondent.
    Kevin M. O’Keefe, St. Louis, for relator.
   KELLY, Presiding Judge.

This case involves the consolidation of an appeal by the State of Missouri from the judgment of Division No. 6 of the St. Louis County Circuit Court in proceedings under the provisions of Rule 27.26 V.A.M.R. vacating a conviction in Division No. 15 of said Circuit Court and granting the movant leave to withdraw his plea of guilty in the cause — State of Missouri v. Doyle George Reece, Circuit Court file No. 357049 — with a petition for Writ of Prohibition filed by the movant in the 27.26 motion seeking to have the Judge of Division No. 15 prohibited from doing anything further to implement an Order of Court which had the effect of nullifying the judgment entered in Division No. 6 and ordered the movant be remanded to the custody of the Missouri Department of Corrections to serve the remainder of the sentence which the judgment entered in Division No. 6 had ordered vacated.

We make permanent the preliminary writ of prohibition heretofore issued enjoining the judge of Division No. 15 from doing anything further to implement his Order of Court of January 22, 1976, entered in Cause No. 357049 of the Circuit Court of St. Louis County aforesaid, directing that the movant be remanded to the custody of the Missouri Department of Corrections. We also affirm the judgment of the judge of Division No. 6 in the 27.26 motion vacating the sentence imposed in Cause No. 357049 and granting the defendant therein leave to withdraw his plea of guilty.

The genesis of this consolidated case is a case heretofore identified by style and cause number in the Circuit Court of St. Louis County wherein the defendant — as Mr. Reece shall hereinafter be identified— was charged with the offense of Robbery in the First Degree by Means of a Dangerous and Deadly Weapon, §§ 560.120 and 560.135 RSMo.1969. That cause was assigned to Division No. 15 of the Circuit Court of St. Louis County wherein the respondent, as Judge Campbell shall hereinafter be identified in the prohibition proceeding, presides. An assistant public defender represented the defendant at his arraignment of July 1, 1974, when the defendant entered a plea of guilty before the respondent judge. After this arraignment was completed the defendant was returned to the county jail to await a pre-sentence investigation to determine his suitability for probation. Defendant remained in the county jail for two days and was then released on his own recognizance pending the completion of the pre-sentence investigation by the State Board of Probation and Parole. At his arraignment the defendant and his counsel were advised that defendant was to return to court on September 4, 1974, when he would learn whether he was to be placed on probation or be sentenced.

At some date after his release from jail on his own recognizance — the record fails to reveal this date — the defendant left the State of Missouri and returned to his home in Arizona and still later — again, the record does not reveal when — he was taken into custody somewhere in the State of New Mexico, waived extradition, and was returned to the St. Louis County Jail. It is clear from the record that defendant did not appear for sentencing on September 4, 1974, as he was directed by the judge of Division No. 15, and did not contact the State Board of Probation and Parole to aid that body in the conduct of the pre-sentence investigation ordered by the judge accepting defendant’s guilty plea. On November 8, 1974, the defendant was brought before the respondent judge in Division No. 15 of the Circuit Court of St. Louis County and was sentenced to a term of 25 years in the custody of the Missouri Department of Corrections.

On February 7, 1975, defendant filed a Motion to Vacate, Set Aside or Correct Judgment pursuant to Rule 27.26. As is the custom, this motion contained numerous allegations attacking the validity of his conviction. However, the evidence in support of his motion, adduced during the evidentia-ry hearing thereon, was directed to two grounds: 1) that if he was denied probation on his guilty plea the sentence which would be imposed upon him would not be in excess of five years, and 2) ineffective representation by his court-appointed counsel in failing to file with the court prior to imposition of sentence a motion for leave to withdraw his plea of guilty pursuant to Rule 27.25 V.A.M.R. As is customary in the Circuit Court of St. Louis County, this motion was assigned to the judge before whom the plea was entered and the sentence imposed — the respondent — and simultaneously, defendant filed a motion to disqualify said judge from hearing his motion to vacate. Pursuant to defendant’s motion to disqualify the 27.26 proceedings were transferred to the judge presiding in Division No. 6.

On January 14, 1976 an evidentiary hearing was had in Division No. 6 and on January 19, 1976 findings and conclusions of the trial court were filed and judgment entered sustaining defendant’s motion to vacate the judgment and sentence entered on November 8, 1974 in Division No. 15, whereby defendant was sentenced to 25 years in the penitentiary, and granting defendant leave to withdraw his plea of guilty entered on July 1, 1974.

A copy of this judgment was filed of record in the file in Cause No. 357049 in Division No. 15 and this evoked the Order of Court of January 22, 1976 which is the subject of the prohibition action. This order stated that the judge of Division No. 15 found that the judgment entered in the motion to vacate proceeding was not in accord with law and decisions of the appellate courts of this State and for that reason he “declines to vacate and set aside the plea of guilty and sentence of this Court in the motion filed pursuant to Rule 27.26 . ,” and ordered the defendant remanded to the custody of the Missouri Department of Corrections to serve the remainder of the sentence he had imposed.

On January 19,1976, the State of Missouri filed its notice of appeal from the judgment of the judge of Division No. 6 in the motion to vacate and on January 26, 1976, the defendant filed a motion for leave to withdraw his plea previously entered in Division No. 15. At the same time he filed a motion to disqualify the judge of Division No. 15 under “Rule 30.12 V.A.M.R.” from entertaining his motion to withdraw plea. Also on January 26,1976 defendant filed his petition for Writ of Prohibition in this court. On February 11,1976, a Preliminary Order of Prohibition issued out of this court directing the respondent to show cause why he should not be prohibited from proceeding further or from entering any orders which would in any way contradict or derogate the judgment entered in the motion to vacate proceeding in Division No. 6 of the Circuit Court of St. Louis County. The respondent made his return to the Writ on the same date the Preliminary Order was issued and, on defendant’s motion, on May 27, 1976, the Writ proceedings and the appeal by the State from the judgment in the motion to vacate proceedings were consolidated.

We have concluded that the respondent was without jurisdiction to interfere with or to enter any order in derogation of the judgment entered by the Judge of Division No. 6 of the St. Louis County Circuit Court in the motion to vacate which set aside the defendant’s conviction and sentence and granted him leave to withdraw his plea of guilty. We therefore order that the Preliminary Order to Show Cause heretofore issued be made permanent.

It is apparent from the Order of Court entered by respondent on January 22, 1976 that he misconstrued the legal effect of the judgment sustaining defendant’s motion to vacate and set aside plea of guilty under Rules 27.26 and 27.25 V.A.M.R., and that he was of the opinion that until such time as he entered an order in the criminal case file setting aside the sentence he had imposed and granting the defendant leave to withdraw his plea of guilty, the judgment therein was still valid and binding upon the defendant.

The purpose of a motion filed under the provisions of Rule 27.26 is to afford a prisoner confined under sentence a convenient means of collateral attack on the judgment of a conviction which is void or otherwise subject to attack on one or more of the grounds enumerated in the Rule itself. The Rule was initially adopted as a substitute for writ of habeas corpus as a vehicle for post-conviction relief and was modeled after Section 2255 of Title 28 U.S.C., the federal statute providing post-conviction relief in convictions obtained under the federal judicial system. The Rule, as adopted, does not broaden the right of attack on the conviction and judgment in the criminal action nor the scope of review beyond that permitted by habeas corpus. State v. Rutledge, 317 S.W.2d 365, 366[1] (Mo.1958). Proceedings under the Rule, although collateral to the underlying criminal action, are not technically a continuation of that criminal action in which the conviction of the movant was obtained. Layton v. State, 500 S.W.2d 267, 269[4] (Mo.App.1973). Rather, they are in the nature of a civil action and the procedures at both the trial and appellate level are governed by the Rules of Civil Procedure so far as they are applicable. State v. Davis, 438 S.W.2d 232, 234[4] (Mo.1969) Rule 27.26(a). If a new trial is granted the original prosecution then continues. State v. Keeble, 427 S.W.2d 404, 407[2] (Mo.1968).

The Rule provides that, although it does not suspend the rights available by habeas corpus, it is the exclusive procedure whereby a prisoner in custody under sentence and claiming a right to be released on the ground that his sentence is unlawful, may collaterally attack his conviction. Whereas in a habeas corpus proceeding application for the writ must be made to the judge having jurisdiction over the place wherein the prisoner is in custody, the Rule requires that the motion be filed in “the court which imposed [said] sentence.” As used in the Rule the term “court” in fixing venue does not specifically require that the motion to vacate, filed in a multi-division court such as we have here, be assigned for disposition to the division of the court in which the plea was received and the sentence imposed. It has been, as we pointed out hereinabove, the practice in the Circuit Court of St. Louis County that, upon filing, these post-conviction motions be assigned by the clerk of the court to the division of the court which did in fact accept the guilty plea and impose the sentence under attack. Under this practice it is the sentencing judge who also considers and passes upon the merits of defendant’s motion to vacate, except where, as in this case, that judge has been disqualified pursuant to the provisions of Rule 51.05. Here the respondent no longer retained any jurisdiction over the Rule 27.26 proceedings once he was disqualified and the motion transferred to the judge presiding in Division No. 6 of the court for determination.

The judgment in the 27.26 proceeding was still subject to review by an appellate court upon the filing of a notice of appeal by the State of Missouri when respondent undertook to nullify its effect. The respondent circuit judge undertook to pass upon the merits of a judgment entered by another judge of correlative jurisdiction who had heard the evidence adduced at the eviden-tiary hearing in support of the motion, observed the witnesses, and arrived at certain findings and conclusions based thereon. It was at least presumptuous on the part of the sentencing judge to conclude that the judge to whom the cause was transferred erred in his findings and conclusions. While there is some authority for one judge to refuse to be bound by an interlocutory ruling or order of another judge of correlative jurisdiction in the same case, See Anno. Interlocutory Ruling or Order of One Judge as Binding On Another in Same Case, 132 A.L.R. 14, those cases are inapposite here.

Although our research has led us to no case directly in point, the court in State ex rel. Allen v. Buckner, 226 Mo.App. 807, 47 S.W.2d 256, 257[1] (1932) held that a final judgment for temporary alimony as amended by the judge of Division 2 of the Circuit Court to whom the application for temporary alimony had been assigned, became final and would remain in force until set aside in the manner provided by law, and could not be interfered with by the judge of any other division of the court sitting in his own division. Accordingly, when the judge of Division No. 1 of the same court, who subsequently heard and entered a judgment in the same divorce case denying alimony to the wife, attempted to quash a writ of execution to collect past due temporary alimony payments pursuant to the order of the judge in Division No. 2 of the court, the Court of Appeals held that he was without jurisdiction to do so. See also St. Louis Amusement Co. v. Paramount Pictures, D.C., 61 F.Supp. 854, appeal dismissed, 8 Cir., 156 F.2d 400, appeal dismissed, 8 Cir., 158 F.2d 30, affirmed, 8 Cir., 168 F.2d 988, cert. den. 335 U.S. 854, 69 S.Ct. 83, 93 L.Ed. 402 (1948).

A reading of Rule 27.26 also leads us to the conclusion that this is the only result we can reach in this case. As we have previously stated, a motion for post-conviction relief under the provisions of Rule 27.-26 is a collateral attack upon a conviction in a criminal proceeding. Unlike an appeal, it is not a direct attack on the validity of the conviction. It is not a continuation of the criminal proceeding. The Rule specifically provides that the court in which the eviden-tiary hearing is had “shall make findings of fact and conclusions of law on all issues presented . . . ” and, if the court finds that the judgment under attack suffers from one or more of the infirmities enumerated within the Rule as grounds for post-conviction relief, provides that “the court shall vacate and set aside the judgment and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” There is no requirement that the court direct the sentencing judge, where he has been disqualified, to do anything. It is the final judgment granting the appropriate relief which effects the vacation, or other post-conviction relief adjudged. Rule 27.-26(i). Kercheval v. United States, 274 U.S. 220, 224, 47 S.Ct. 582, 71 L.Ed. 1009 (1927). State v. Keeble, 427 S.W.2d 404, 407[2] (Mo. 1968).

We make permanent the preliminary rule of prohibition heretofore issued and hold that the order heretofore entered in Cause No. 357049 of the Circuit Court of St. Louis County, State of Missouri v. Doyle George Reece on January 22, 1976, in Division No. 15 thereof, whereby defendant was ordered remanded to the custody of the Missouri Department of Corrections to serve the balance of the 25 year sentence imposed therein, is void and a nullity; and we further enjoin the respondent herein from implementing said Order.

There remains for disposition the appeal of the State of Missouri from the judgment of Division No. 6 of the Circuit Court of St. Louis County vacating the judgment of Division No. 15 of the same court in the criminal cause aforesaid. We now consider that appeal.

Appellate review of a judgment in proceedings to vacate, etc., a judgment pursuant to the provisions of Rule 27.26 is limited by paragraph (j) of said Rule to a determination of whether the findings, conclusions and judgment of the trial court are “clearly erroneous.” As employed in the context of the Rule, the term “clearly erroneous” means that although there may be evidence to support the finding and judgment of the trial court, the reviewing court may set aside the judgment of the trial court only where, on the entire evidence, it is left with a definite and firm conviction that the trial court was mistaken in its findings and conclusions. Thurman v. State, 523 S.W.2d 521, 528[3] (Mo.App.1974). The exercise by the trial court of the power to order set aside a judgment of conviction and permit withdrawal of a guilty plea pursuant to Rules 27.26 and 27.25 is discretionary with the trial court and its action should not be disturbed on appeal except for an abuse of the exercise of its judicial discretion. State v. Davis, supra, 1. c. 234[4]. Even where a reviewing court does not agree with the basis for the trial court’s findings and conclusions in entering a judgment vacating a sentence and permitting withdrawal of a guilty plea, the judgment must be affirmed if it may be properly sustained on other grounds than those relied upon by the trial court. State v. Kimes, 415 S.W.2d 814, 815[2] (Mo.1967).

Although defendant’s motion, as amended, alleged numerous grounds why his conviction should be vacated, the thrust of the evidence offered in support thereof was that when he entered his guilty plea he understood that he would either be placed on probation or, if the recommendation of the State Board of Probation and Parole was negative on his application for probation, the court would sentence him to 5 years in the penitentiary.

To ascertain whether the judgment of the trial court in the post-conviction proceeding was “clearly erroneous” the evidence adduced at the evidentiary hearing on the motion must be considered. The transcript of the plea-taking proceeding was introduced into evidence and read by the trial judge; it is incorporated into the record of that proceeding. In addition, the court-appointed assistant public defender who represented the defendant at the time he entered his guilty plea and the defendant himself testified. The State put on no evidence.

The State, on appeal, relies on a single point; that is, that the judgment of the trial court is clearly erroneous because the defendant voluntarily, knowingly and understandingly entered his plea of guilty and therefore his counsel cannot be found to have rendered ineffective representation. In support of this point it relies on White v. State, 530 S.W.2d 444,446[2] (Mo.App.1975).

The State argues that the record of the plea-taking proceeding complied with Rule 25.04 and contained an admission by the defendant that he understood the judge’s admonition that if he committed another crime prior to sentencing he could be sentenced to between 30 and 99 years. It points out that defendant admitted that he failed to report to the probation and parole office by fleeing to Arizona and not returning to Missouri for his sentencing and argues that this constituted a felony under 18 U.S.C. § 1073. The fallacy of this argument is that a parole or probation officer is not a judicial officer within the meaning of 18 U.S.C. § 1073, and the failure of the defendant to report to a probation or parole officer does not constitute a crime under the federal statute. United States v. Clark, 412 F.2d 885, 891[7] (5th Cir. 1969).

The crux of this point is what the understanding of the defendant was at the time he entered his plea, and in deciding what that was we are faced with the finding of the trier of fact that defendant did, in fact believe, and had reasonable cause to believe, a “deal” was made that if he entered a guilty plea he would either be placed on probation or receive a sentence of 5 years in the penitentiary. This finding rests on the sentencing judge’s statement to him that “. . . if I do not give you probation, I would probably sentence you to five years in the penitentiary.” (Emphasis supplied).

We have found no case exactly in point, and although we have researched the question thoroughly we have found only a very few cases where a judgment in post-conviction proceedings has been reversed on appeal. This is undoubtedly due to the limited review afforded either to movant or the State in such cases. Even in those instances where post-conviction relief was denied we find many conflicting statements which seem to confuse rather than enlighten the researcher. However, the State has conceded, page 23 of its brief:

“Of course, for nearly 100 years, Missouri courts have recognized that where a guilty plea is induced by a false promise of minimum punishment, the guilty plea is involuntary. See State v. Stephens, 75 [71] Mo. 535 (Mo.1880).”

The law is well settled that where a defendant has been misled or induced to plead guilty by fraud or mistake, by misapprehension, fear, persuasion or the holding out 'of hopes which prove to be false or ill-founded, he should be permitted to withdraw his guilty plea. State v. Cochran, 332 Mo. 742, 60 S.W.2d 1, 2[7] (1933); State v. Williams, 361 S.W.2d 772, 775[4] (Mo. banc 1962). It is immaterial whether the mistake, misapprehension, fear, persuasion or holding out of hopes which proved to be false or ill-founded, was intentional or unintentional. State v. Dale, 282 Mo. 663, 669, 222 S.W. 763, 764 (Mo.1920).

We have been cited to no case where a statement, such as we have here, was made to a defendant contemplating the entry of a guilty plea has been considered on a motion to vacate under Rule 27.26. In Brown v. State, 526 S.W.2d 55, 56 (Mo.App.1975) the defendant alleged as grounds for his post-conviction relief pursuant to Rule 27.26 that, among other things, “his counsel told him he would ‘probably’ receive a seven year sentence because two other people involved in the same offense had received seven year sentences.” (Emphasis supplied). However, in affirming the judgment denying post-conviction relief, the appellate court found that it was shown beyond any doubt in the transcript of the hearing at which the plea was accepted that the defendant voluntarily and knowingly entered a plea of guilty, knowing and acknowledging to the court that his sentence would range anywhere from five years to life imprisonment. In Brown there was no contention that the defendant was misled by any statement made by the judge who accepted his plea, and for that reason we do not find Brown in point.

We are convinced that there was no intention on the part of the judge in this case to mislead the defendant standing before him for arraignment. But that is not the question the trial judge in the post-conviction hearing had to decide. He had to determine from the evidence, whether, in fact, this statement had that effect, and whether it was reasonable for the defendant to form the belief he alleged was in his mind at the time he entered his guilty plea. What the defendant believed was an issue of fact dependent upon the credibility of the defendant himself and was a matter for the experienced trial judge to resolve. Babock v. State, 485 S.W.2d 85, 90[18] (Mo. 1972).

We also conclude that the trial court’s judgment on this point is supported by the exclamation of the assistant public defender subsequent to imposition of sentence which evidence surprise at the length of sentence imposed and that it exceeded that recommended by the prosecuting attorney. From this evidence we are of the opinion that the trial judge could have concluded, as we have, that there was much in the nature of plea bargaining omitted from the record. Again, we do not believe that this was deliberately done, but there are references made to discussions between the assistant public defender and the sentencing court about the case which are not a part of the record. This, viewed in light of the defense counsel’s testimony that he never undertook negotiations with the office of the prosecuting attorney and was not personally informed of the prosecutor’s recommendation, although he was solely in charge of the defendant’s case, the passive participation of the assistant prosecutor at the plea-taking, and the statement of probabilities by the sentencing judge, lends weight to the trial court’s findings that the defendant had reason to believe that when he waived extradition in New Mexico his application for probation would be denied and he would be sentenced to five years in the penitentiary.

Misconduct by a defendant subsequent to a guilty plea may furnish a basis for withdrawal of a guilty plea where, by reason of that misconduct the trial judge concludes he can no longer abide by an agreement or promise the defendant reasonably believes was made at the time the plea was entered and accepted. Whether the defendant should be granted leave to withdraw his plea depends on the record made when the plea was entered and accepted. However, there is good authority for the trial judge, under those circumstances, to advise the defendant that whatever his understanding was at the time the plea was accepted, because of his subsequent misconduct, the sentence discussed at that time is no longer feasible, and then afford the defendant an opportunity to withdraw his plea.

Where a defendant misled his counsel, the prosecuting attorney and the judge relative to his prior criminal record and was thereby led to believe that upon entering a guilty plea he would receive favorable consideration for probation, the court in State v. Roach, 447 S.W.2d 553 (Mo.1969) ordered a sentence and judgment of conviction vacated and the guilty plea withdrawn after a pre-sentence investigation brought to light his extensive prior criminal record. When the court before which the plea had been entered learned of the defendant’s criminal record it denied his request for probation and sentenced him to the penitentiary. The reviewing court found as a fact that Roach had reason to believe that he would be granted probation if he pleaded guilty, and said, l.c. 557: “From the exchange between the court and the accused the latter reasonably could have anticipated that he would receive probation." (Emphasis supplied). The fact that the defendant had misled the court, the prosecutor and his own counsel was not grounds to deprive him of his right to a voluntary plea, free from any encouragement of leniency although it was authored by his own misconduct.

We believe the principle recognized in State v. Roach, supra, is equally valid here. The voluntary nature of defendant’s guilty plea depends upon his understanding of what sentence he was to receive in return for it at the time his plea was entered. It is apparent from the record of the evi-dentiary hearing on the defendant’s motion to vacate, as well as from the record of the plea-taking, that he had been conditioned to expect leniency in the form of probation or a minimum sentence by his court-appointed counsel in return for a guilty plea. He was encouraged to waive his preliminary hearing after the second conference and was advised of the “judicial philosophy” of the judge before whom he was to come for arraignment, and that judge’s penchant to consider first-offenders for probation. When brought before the judge he was prepared to throw himself on the mercy of the court and was told by the judge that if he failed of probation he “probably” would be sentenced to a five year term.

In these circumstances, and despite the admonitions of the judge that if he committed “a crime” while on recognizance awaiting the results of a presentence investigation the “book” would be thrown at him, we cannot hold that the trial court was clearly erroneous in its finding that the defendant not only believed, but had reason to believe, that the alternative available to him upon entering a guilty plea was either probation or a sentence of 5 years imprisonment.

Although we recognize that there is authority for a sentencing judge to take into consideration the fact that the defendant failed to appear in determining the length of sentence to be imposed upon a plea of guilty, we nevertheless also conclude that where the sentencing judge on that account feels no longer inclined to impose a “probable" 5 year sentence he had held out to the defendant at the time the defendant entered and he accepted, a guilty plea, prior to imposing sentence he should have afforded the defendant an opportunity to attempt to explain the circumstances of why he failed to appear and if unmoved thereby should have offered the defendant an opportunity to withdraw his guilty plea and stand trial, or, if he so chose, submit himself to the mercy of the court. Were this done, at least the spirit of State v. Roach, supra, would have been satisfied.

Under the facts of this case we need not decide whether defendant’s court-appointed public defender’s representation met the minimum standards guaranteed the defendant by the Sixth Amendment of the United States Constitution. It is apparent that in his zeal to get the best possible “deal” for his client, counsel’s judgment that a guilty plea was the only avenue open to him may well have been proper under the circumstances and more particularly in view of statements his client had made to him relative to his complicity in the commission of the crime. Nevertheless, he too expressed his amazement at the 25 year sentence imposed immediately subsequent to the pronouncement of sentence and was rebuffed by the sentencing court. Counsel’s exclamation might well have been considered by the trial court in its finding that defendant’s belief that he would either be placed on probation or sentenced to a 5 year term was not without foundation in fact. Nevertheless, if the defendant’s plea was not voluntary because entered with a mistaken belief on his part concerning the alternatives available to him in return for the plea, and if this mistaken belief was contributed to by the statement of the judge accepting the plea that if he did not enjoy probation his sentence would be 5 years, the plea, the sentence and conviction were properly vacated and the defendant was properly granted leave to withdraw his guilty plea regardless of whether his counsel rendered effective representation or did not. The fact that the plea was found to be involuntary alone is sufficient to support the judgment of the trial court.

The judgment of the trial court on defendant’s motion to vacate sentence and to grant him leave to withdraw the guilty plea of July 1, 1974, is affirmed.

SIMEONE, C. J., and GUNN, J., concur.

      . We note specifically the absence of any reference to § 544.665 Laws 1972, p. 1027, § 1, effective August 13, 1972, at the time defendant was admonished about any criminal activity while on recognizance when his plea was accepted on July 1, 1974. This statute, modeled after § 1073, 18 U.S.C. made it a crime for any person released on bail or recognizance to “willfully” fail to appear before any court or judicial officer as required, and if the defendant was on bail or recognizance on a pending felony charge the crime of failing to appear was also a felony punishable by a fine of not more than $5,000.00 or imprisonment for more than 5 years. It is interesting also that the State failed to cite this statute rather than the federal statute in support of this line of argument.

      . We are not confronted here with the propriety of the sentencing judge enhancing the sentence of the defendant by reason of his failure to appear. See Haslam v. United States, 431 F.2d 362, 363[1, 2] (9th Cir. 1970), opinion adhered to on rehearing, 437 F.2d 955 (9th Cir. 1971) certiorari denied 402 U.S. 976, 91 S.Ct. 1680, 29 L.Ed.2d 142.