author: HIGGINS, Special Judge.

text:
    CITIZENS NATIONAL BANK, Appellant, v. STATE FARM MUTUAL INSURANCE COMPANY, Respondent.
    No. 28045.
    Missouri Court of Appeals, Kansas City District.
    May 2, 1977.
    Motion for Rehearing and/or Transfer Denied June 1, 1977.
    Robert L. Shirkey, Kansas City, for appellant.
    Spencer J. Brown, Deacy & Deacy, Patrick C. Cena, Kansas City, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   HIGGINS, Special Judge.

Appeal from judgment on trial de novo, Section 512.270, RSMo 1969, in action on automobile insurance policy. The question is whether the policy covered the destroyed vehicle (1972 Ford pickup truck) as a newly acquired vehicle after termination of coverage on the vehicle (1969 two-door Ford To-rino) described in the policy. Affirmed.

On May 15, 1972, Raymond Lee Sanson purchased a policy of automobile insurance from State Farm Mutual Insurance Company, Joel Valbracht, agent, covering a 1969 two-door Ford Torino. Citizens National bank had financed Mr. Sanson’s purchase of the Torino May 4, 1972, and State Farm delivered to Citizens National a Memorandum of Insurance to Lienholder describing coverage afforded the lienholder with respect to the Torino effective “05-15-72 until terminated.” The Memorandum of Insurance contained a “Message to Lienholder”:

“This confirms that the policy described hereon includes a loss payable clause protecting the interest of the lienholder with respect to the described automobile to the extent of the insurance provided, from the Policy Effective date shown until terminated.
“You will be given 10 days notice protecting your interest if the policy is can-celled or terminated. * * *
“The lienholder shall notify the company within 10 days of any change of interest or ownership which shall come to the knowledge of said lienholder and failure to do so will render this policy null and void.”

Raymond Sanson failed to pay the premium required to continue the policy in effect beyond August 14, 1972, and State Farm mailed to him and to Citizens National a Notice of Termination of Insurance for failure to pay the necessary premium. Both the lienholder and the insured acknowledged receipt of the Notice of Termination. The notice provided also:

“Pursuant to the terms of the policy, we will continue the insurance in force for 13 days after the date of this notice for exclusive protection of and to the extent of your interests as they are affected by the ownership, maintenance or use of the automobile described in the policy and subject to the limits hereof.”

On or about September 5, 1972, Mr. San-son traded the 1969 Ford Torino to purchase a 1972 Ford pickup truck, financed by Citizens National September 6, 1972. Citizens National acknowledged that its interest in the Torino ceased on that date when the note against it was refinanced in the purchase of the pickup truck. Mr. Sanson acknowledged that he had no insurance when he negotiated the financing of the pickup truck.

On September 5, 1972, Mr. Sanson called Mr. Valbracht and “told him I was trading for a new truck, and I would be in on Saturday [September 9] to pay him for his insurance, and I didn’t make it.” Mr. San-son did not “make it” in that he wrecked the pickup truck on September 9, 1972. It was a total loss.

The policy of insurance issued to Mr. San-son on the Torino contained a provision for physical damage deductible collision coverage. It also provided for loss to the owned motor vehicle, defined as “the motor vehicle * * * described in the declarations [1969 Two Door Ford Torino], and includes * * a newly acquired automobile,” defined as “an automobile, ownership of which is acquired by the named insured * * * if * * * it replaces an automobile * * * covered by this policy.”

State Farm refused to pay the lien of Citizens National on the destroyed pickup truck and this action ensued.

Preliminary to entry of judgment denying recovery for loss of the pickup truck, the court found that it was not a replacement for a vehicle covered by the policy in question within the provision for coverage of a newly acquired vehicle as defined in the policy.

Appellant charges the court erred asserting that defendant’s insurance policy provided coverage to the insured’s pickup truck, destroyed September 9, 1972, after its acquisition September 5, 1972, “(Timely Notice of Acquisition Having Been Given),” in that “the policy and all provisions * * * constituted a standard or union mortgage clause and therefore a separate and distinct contract between plaintiff and defendant, irrespective of defendant’s relationship with its insured or coverage he may have thereunder.” Appellant cites a number of cases, e. g., Prudential Ins. Co. v. German Mutual Fire Ins. Ass’n, 231 Mo.App. 699, 105 S.W.2d 1001 (1937), and MFA Mutual Ins. Co. v. Huddleston, 459 S.W.2d 104 (Mo.App.1970), discussing standard or union mortgage clauses as distinguished from open clauses; and Burns v. Insurance Co. of Pennsylvania, 224 S.W. 96 (Mo.App.1920), and Burns v. Ohio Farmers’ Ins. Co., 224 S.W. 98 (Mo.App.1920), for the proposition that the interest of a mortgagee cannot be invalidated by any act or neglect of the mortgagor. Appellant argues that the standard or union mortgage clause in defendant’s policy was “a separate contract * * * and that the defendant having' been notified of a change of interest or ownership within the admitted time frame allowable by the policy,” the pickup truck became and was covered as a newly acquired automobile.

There is no question that the mortgage clause in the policy in question is a standard or union clause as distinguished from an open clause. Nevertheless, it does not operate on the insurance contract covering a 1969 Torino to create coverage in favor of the lienholder on Mr. Sanson’s pickup truck where coverage on the truck was never afforded by the policy. The effect of such provision and the rights of the parties are determined by reference to the insurance policy. General Motors Accept. Corp. v. Western Fire Ins. Co., 457 S.W.2d 234 (Mo.App.1970); Bilsky v. Sun Ins. Office, Limited, of London, England, 231 Mo.App. 1072, 84 S.W.2d 171 (1935).

The contract between State Farm and Mr. Sanson was for State Farm to provide the coverages defined in the policy from May 15, 1972, to August 14, 1972, when the policy obligation was terminated for failure to pay premiums. The policy covered a 1969 Ford Torino, in which Citizens National had established a security interest May 4, 1972, when Mr. Sanson purchased it and financed it at Citizens National. The bank thereby acquired an insurable interest in the Torino and was protected against loss of the security under the loss payee or beneficiary clause to the extent of its interest in the Torino in the insurance contract between Mr. Sanson and State Farm.

Mr. Sanson terminated his contract with State Farm when he failed to make the premium payment necessary to extend the policy beyond the premium due date August 14, 1972. When payment due August 14, 1972, failed, State Farm sent notice of termination of insurance to both Mr. San-son, the insured, and Citizen’s National, the lienholder or loss payee. The notice to the bank continued the insurance in force for benefit of the bank thirteen days.

There is no question under the evidence that Citizen’s National knew of the termination of the insurance with Mr. Sanson when on September 6,1972, Mr. Sanson was at the bank to arrange financing for his purchase of the pickup truck. At that time Citizen’s National by the terms of the policy could be protected, if at all, only with respect to the Torino described in the policy and only as long as it had an interest in the Torino. Such interest admittedly ceased September 6,1972, when the bank renegotiated the note with the Torino as security in financing the purchase of the pickup truck. Accordingly, the contract between State Farm as insurer and Citizens National as loss payee on the Torino was extinguished.

In order for Citizens National to establish a right to protection against loss of the pickup truck, it would need to establish either a new contract insuring the pickup truck or that it was somehow entitled to coverage on and after September 6, 1972, when the Torino passed out of the picture, under the prior contract.

There is no evidence of a new contract of insurance purchased by Mr. Sanson or Citizens National describing the pickup truck as the vehicle insured. (That may have been the intention of Mr. Sanson prior to September 9, 1972, but he failed so to do, and wrecked the pickup that day.)

Nor can Citizens National qualify the pickup truck for coverage as a newly acquired automobile to replace an automobile covered by the policy in question.

In order for coverage to be extended to Citizens National on the pickup truck as a newly acquired vehicle, there must be a policy of insurance in force on the replaced automobile. It is undisputed that there was no coverage on the Torino at the time it was traded for the pickup because the insured had allowed its coverage to terminate for nonpayment of premium; and the 13-day period of extended coverage on the Torino had also expired.

It was not the failure of the insured to pay the renewal premium which invalidated his coverage of a newly acquired vehicle; it was the failure to comply with the policy provision which required that there be coverage on the vehicle replaced at the time of its replacement in order to have coverage on the replacement vehicle. Thus, the pickup truck was not covered by the policy because there was no coverage absent compliance with the policy’s provisions.

Judgment affirmed.

All concur.

      . This paragraph of the “message” was also contained in the “Declarations” section of the policy.

      . There is no evidence that the lienholder notified State Farm of any change of interest or ownership as provided in the Memorandum of Insurance and the policy. The only evidence relating to appellant’s assertion is Mr. Sanson’s testimony that he called Mr. Valbracht September 5, 1972, to advise he was trading for a truck and would arrange to insure it on the 9th.


source: Caselaw Access Project

author: TURNAGE, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Lloyd ADAMS, Appellant.
    No. KCD 28577.
    Missouri Court of Appeals, Kansas City District.
    May 2, 1977.
    Motion for Rehearing and/or Transfer Denied June 1, 1977.
    Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and WAS-SERSTROM and TURNAGE, JJ.
   TURNAGE, Judge.

Lloyd Adams was convicted of carrying a concealed weapon under § 564.610, RSMo 1969, and sentenced to imprisonment for two years.

On this appeal Adams makes the singular assertion the court erred in overruling his pre-trial motion to suppress the physical evidence of the gun. Affirmed.

Adams was stopped by a security guard at the Wayne Miner Housing Project because he was wanted for questioning by the Kansas City Police Department. After Adams was stopped, the guard performed a pat down search which revealed a loaded .38 caliber revolver in Adams’ belt under a coat and sweater.

A pre-trial motion to suppress evidence of the gun was filed and the evidence heard. The court overruled the motion. At the trial the State had the gun marked as an exhibit and offered the same into evidence. When the gun was offered into evidence, Adams’ counsel stated, “I have no objection.”

This court considered the question presented here in State v. Hunter, 530 S.W.2d 432 (Mo.App.1975). In that case this court recognized the rule in this state which requires an objection when evidence which was the subject of a motion to suppress is presented at trial. This court held the statement of “no objection” not only violated such rule, but constituted an express waiver of the contention made in the motion to suppress.

Because of the express waiver by counsel in stating he had no objection when the State offered into evidence the gun taken from Adams, the contentions made in the motion to suppress the gun as evidence have been waived.

The judgment is affirmed.

All concur.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    Elva Dale SEINER, Appellant, v. Bobby Gene SEINER, Respondent.
    No. 28861.
    Missouri Court of Appeals, Kansas City District.
    May 2, 1977.
    Motion for Rehearing and/or Transfer Denied June 1, 1977.
    Application to Transfer Denied July 11, 1977.
    Morris, Foust, Beckett & Ponick, Max W. Foust, Bart L. Strother, Kansas City, for appellant.
    Earnshaw & Earnshaw, Catherine Earn-shaw Hobbs, Lee’s Summit, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from judgment in dissolution of marriage proceeding insofar as it divides marital property. Affirmed.

The judgment, after dissolving the marriage, awarded Mrs. Seiner $15 per week maintenance, $600 attorney’s fees, and $350 to pay debts incurred by her since separation from Mr. Seiner. It divided marital property as follows:

(1) Of a total of 50 shares, being all the shares of Summit Moving and Storage, Inc., 25 shares being owned by each party, Mrs. Seiner was ordered to transfer to Mr. Seiner her 25 shares so that he would own all 50 shares;
(2) Mrs. Seiner was ordered to convey to Mr. Seiner her interest in a Contract for Deed of January 15, 1975, to a tract used for the parties’ business operation, balance due sellers $105,000;
(3) Mrs. Seiner was ordered to convey to Mr. Seiner her interest in a church bond so that he would be solely responsible -and hold her harmless for any obligation arising out of the bond, approximate debt $800;
(4) Both parties were ordered to select items of personal property and household goods having sentimental value to them, and to sell the remainder at auction and divide the proceeds equally;
(5) Both parties were ordered to sell their residence and divide the proceeds equally.

Appellant asserts the division “could not have been in just proportions because the value of the marital property cannot be determined from the evidence and because the court erroneously valued the marital property based on the evidence. * * * Even if a value of the marital property was properly determined, the division is so heavily weighted in favor of [Mr. Steiner] that it constitutes an abuse of discretion because there was not sufficient evidence to support those factors which under Missouri law would justify such a discrepancy.”

Section 452.330, RSMo 1969, provides for division of marital property “in such proportions as the court deems just after considering all relevant factors including:

“(1) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;
“(2) The value of the property set apart to each spouse;
“(3) The economic circumstances of each spouse at the time the division * * * is to become effective * * *; and
“(4) The conduct of the parties during the marriage.”

Appellant concedes an “equal” and just division of the residence, furniture and household goods, items (4) and (5) of the judgment. She argues that the value of the respective interests in the contract for deed could not have been determined from the evidence “unless only coincidentally so,” and therefore the entire division of marital property was not just.

Appellant also concedes there was sufficient evidence to support a finding that the 50 shares of stock awarded to Mr. Seiner had no value; but that because the contract for deed could not be valued, its value determines the extent of imbalance, thereby rendering the entire division unjust.

Appellant concedes, too, that Section 452.330, supra, does not require an equal division of property, but only that the court make a just division.

Elva Dale and Bobby Gene Seiner were married November 2, 1952. They had two children, both of whom were emancipated at time of trial.

Mrs. Seiner was employed in Oklahoma City, Oklahoma, at the time of trial, earning $96 per week, $385 per month take-home pay. Her estimated expenses for rent, utilities, automobile, insurance, and food totaled $500 per month. She estimated, but was not sure, that she owed her family $1,000 on debts incurred since separation from her husband September 20, 1975.

Mr. Seiner received $138.74 per week take-home pay from the family corporation, Summit Moving and Storage. He had personal expenses for such things as house payment, utilities, clothing, and life insurance totaling $360 per month, including $20 per week tithe to his church.

Mr. and Mrs. Seiner acquired Summit Moving and Storage in 1964. Although expanded over the years, business had not been good. The company accountant valued the stock at a “negative” $137.40 per share, without value.

The family residence in Greenwood, Missouri, had a fair market value of $30,000, against which there was a lien of $7,000.

The terms of the contract for deed dated January 15, 1975, were:

Purchase price .$113,190.88
Down payment. 3,000.00
Monthly payment . 1,193.00
Interest. 7½%
First payment. February 15,1975

Mrs. Seiner worked in the family business during the last several years of the marriage. She assisted in management and did some of the bookkeeping. Her earnings contributed to acquisition of marital property, and she promised to train a girl to replace her in the business upon her expressed desire to quit working. She did not fulfill this promise, and'her inaction caused some problems in the business.

Mrs. Seiner’s principal complaint against her husband was that he was possessed of a violent temper. The only specific complaint of violence was an incident in September, 1975. Mr. Seiner’s complaint against his wife was that she had not been a good wife to him for the last several years. She had filed a divorce action previously, and he disapproved of a relationship she formed with one of the company’s employees. The reconciliation was against her will because she said she had lost her love for him.

In these circumstances, it may not be said that the evidence is insufficient to support the mode of division of the marital property or that, as a matter of law, the division is unjust. The division of marital property within the meaning of Section 452.330, supra, cannot be accomplished by way of a mathematical formula, Claunch v. Claunch, 525 S.W.2d 788, 792-793 (Mo.App.1975); nor can the power to apportion be circumscribed by rigid methods or mechanics, Corder v. Corder, 546 S.W.2d 798, 805-806[12, 13] (Mo.App.1977).

The only item in question is the value of the contract for deed on the land utilized in the business. Neither party presented evidence of the fair market value of the tract; however, the court had the terms of the contract and the amount of payments made to aid it in such consideration. Any value that the court could have assigned to the equity in the contract set off to Mr. Seiner appears justly balanced by the negative value of the company stock and the church debt assumed by Mr. Seiner, and the economic condition of Mrs. Seiner and the cash allowances for fees, debts, and maintenance made to her.

Judgment affirmed.

All concur.


author: PER CURIAM.

text:
    DELTA LOAN AND FINANCE CO., Plaintiff-Appellant, v. OSAGE OUTDOOR ADVERTISING CO. and Glenn L. Whitman and Janet E. Whitman, Defendants-Respondents.
    No. 10075.
    Missouri Court of Appeals, Springfield District.
    May 11, 1977.
    Motions for Rehearing or Transfer Denied June 3, 1977.

      Harold P. Heitmann, Millsap, Weil, Eyer-man & Schenberg, Clayton, for plaintiff-appellant.
    No appearance for defendants-respondents.
   PER CURIAM.

This is an action upon a contract of guaranty executed by defendants Glenn and Janet Whitman. Over a period of several years, plaintiff Delta Loan and Finance provided inventory or receivables financing for defendants Whitman; this action was brought to recover a balance of $11,513.45 allegedly due on 13 separate transactions entered into between December 15, 1967, and January 12, 1970. Upon trial to the court plaintiff had judgment against defendants Glenn and Janet Whitman in the amount of $2,448.20. Both plaintiff and defendants appealed. Upon defendants’ motion, their appeal was dismissed pursuant to Rule 84.09, Y.A.M.R.

Examination of the record discloses that the plaintiff declared upon 13 separate, distinct financing transactions arising out of advertising contracts executed by defendants and their corporate and individual advertisers. Four of these contracts were made by Cheese, Inc.; the others were executed by or on behalf of various motels, restaurants and boat docks in the Lake Ozarks area. All 13 contracts were introduced in evidence.

Evidence was heard by the trial court on April 22, 1975. The principal matters in controversy were a) the proper method of computing the “payoff” [used here as meaning the amount required to pay a note or other obligation before maturity] and b) whether or not the parties had reached a compromise and settlement of their disputed obligations and liabilities before the suit was filed. On June 5, 1975, the trial judge addressed a letter to the Circuit Clerk of Camden County directing him to enter judgment in this cause as outlined in the letter, and advising the clerk that the attorneys of record were being notified. The judgment included specific findings concerning 12 of the 13 separate accounts sued upon. The record recites that judgment was entered as directed on June 5, 1975. Comparison of the particular accounts or transactions submitted with those determined shows that the parties’ rights as to one of two contracts executed by Larry and Shirley Gerken, doing business as Western Hills Motel, have not been determined.

Apparently this omission became evident to counsel after the transcript was filed here. In our files we find a copy of a letter addressed to counsel for defendants by plaintiff’s counsel. In the course of this letter counsel for plaintiff notes the discrepancy we have outlined and states, “The totals involved in the transcript are correct, but one of the accounts has been deleted.” It appears that counsel for plaintiff enclosed a stipulation to correct the transcript, and intended that defendants’ attorney either file the stipulation here or return it to plaintiff’s counsel for filing, but no stipulation has ever been filed in this court.

Except as specifically provided by statute or rule of practice, no appeal will lie from a judgment which does not dispose of all the issues raised by the pleadings, and this court is bound to inquire sua sponte whether the judgment entered is final and appealable. Wile v. Donovan, 514 S.W.2d 177, 178[2] (Mo.App.1974). There is no doubt of our jurisdiction over the subject matter of the action, and the parties could have stipulated as a matter of fact that the parties’ rights as to all transactions had been adjudicated, thus authorizing the court to consider and determine the appeal, Berry v. Chitwood, 362 S.W.2d 515, 517-518[5-8], 3 A.L.R.3d 1185, 1188-1189 (Mo.1962), but certainly counsel for defendants was not obliged to make any such admission or stipulation, and in the absence of a waiver, stipulation or admission, we are bound by the record recitals. City of Joplin v. Village of Shoal Creek Drive, 434 S.W.2d 25, 28-29[4] (Mo.App.1968); In re Jackson’s Will, 294 S.W.2d 958[1] (Mo.App.1956). A ruling on part of a claim or on issues not disposing of the whole claim is not a final judgment, State ex rel. State Highway Commission v. Smith, 303 S.W.2d 120, 123[4] (Mo.1957), and this appeal must be dismissed as being premature. If the omission noted is a mere oversight of the trial court, that court may yet correct its error or oversight, State ex rel. Schweitzer v. Greene, 438 S.W.2d 229, 232[5] (Mo. banc 1969), but in any case the record should be corrected in the trial court upon appropriate petition or application, and not here. Hendershot v. Minich, 297 S.W.2d 403, 410[14] (Mo.1956). When a final judgment is rendered, a timely appeal may be taken, if the appellant desires.

The appeal is dismissed.

All concur.

      . As plaintiffs exhibits 3 through 15, inclusive.


author: BILLINGS, Chief Judge.

text:
    John J. BOLIN, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 10417.
    Missouri Court of Appeals, Springfield District.
    May 13, 1977.

      James R. Purcell, Hyde, Purcell, Wilhoit & Edmundson, Poplar Bluff, for movant-ap-pellant.
    John Ashcroft, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
   BILLINGS, Chief Judge.

Appellant John J. Bolin, serving a six-year sentence for felonious assault, filed a postconviction motion under Rule 27.26, V.A.M.R., in the Circuit Court of Butler County. The trial court, without holding an evidentiary hearing, denied appellant’s motion and this appeal followed. We affirm.

Appellant had been charged in a two-count information with escaping jail and felonious assault upon a deputy sheriff in connection with his and Eddy Lee Orr’s jail escape. The transcript of the proceedings shows that on the date appellant pleaded guilty to the assault charge he appeared with his two attorneys, Mr. Hearne and Mr. Bloodworth. The state dismissed the escape charge and the trial court fully complied with Rule 25.04, V.A.M.R., before accepting the appellant’s plea to the assault charge.

The prosecuting attorney informed the court that during the jail escape the appellant used a home-made knife and Orr obtained the deputy’s gun before the officer was locked in a jail cell. The prosecutor pointed out that Orr had threatened serious harm to the deputy and that appellant had helped avoid such action. On behalf of appellant, Mr. Bloodworth repeated the fact that appellant’s actions had helped prevent serious bodily harm to the deputy and asked the court to consider this in passing sentence.

The judge asked appellant whether the prosecutor’s statement of what had happened in the jail was true and the appellant replied “Yes, sir.” The appellant told the judge he did not have any additions to or changes in the prosecutor’s account of the events leading to the charge. The state recommended a six-year sentence. The court found the appellant’s plea was voluntarily entered and accepted it. The appellant was afforded allocution and sentence was imposed and judgment entered.

In his Rule 27.26 motion the appellant did not allege that his guilty plea was involuntary. His single ground for relief is that he was denied effective assistance of counsel “at trial” because Mr. Hearne did not contact or interview Orr and the deputy sheriff to confirm that Orr, not appellant, committed the assault and that appellant was instrumental in preventing Orr from killing the deputy sheriff.

Appellant contends the trial court erred in summarily ruling his Rule 27.26 motion and avers an evidentiary hearing was required because of the “substantial issues of fact” set forth in his motion. We disagree.

As earlier noted, appellant’s motion neither attacks the voluntariness of his guilty plea nor questions the court’s acceptance of his plea. His guilty plea, voluntarily and understanding^ made, is conclusive as to guilt and waives nonjurisdictional defects in prior proceedings. State v. Brown, 449 S.W.2d 664, 666 (Mo.1970). And, a determination of the effectiveness of counsel is immaterial after entry of a guilty plea, unless counsel was inadequate or incompetent in such a manner as to affect the voluntariness and understanding of the plea. Matthews v. State, 501 S.W.2d 44, 47 (Mo.1973).

Appellant’s motion failed to allege facts claiming that his plea was involuntary because of ineffective assistance of counsel and, consequently, as a matter of law, failed to show he was entitled to postconviction relief. See Childers v. State, 502 S.W.2d 249 (Mo.1973). Furthermore, in order to be entitled to an evidentiary hearing under Rule 27.26, the motion must plead facts, not conclusions, which, if true, would entitle him to relief and must show that such factual allegations are not refuted by facts elicited at the guilty plea hearing. Smith v. State, 513 S.W.2d 407 (Mo. banc 1974), cert. denied, 420 U.S. 911, 95 S.Ct. 832, 42 L.Ed.2d 841 (1975); Hogshooter v. State, 514 S.W.2d 109 (Mo.App.1974).

The judgment is affirmed.

All concur.


author: REINHARD, Judge.

text:
    Glen SMITH et al., Plaintiffs-Appellants, v. CITY OF ST. CHARLES, Defendant-Respondent.
    No. 37899.
    Missouri Court of Appeals, St. Louis District.
    May 17, 1977.

      Carter & Becker, P. C., Charles F. Duf-our, John J. Allen, Clayton, for plaintiffs-appellants.
    Rollings, Gerhardt & Hazelwood, Keith W. Hazelwood, St. Charles, for defendant-respondent.
   REINHARD, Judge.

Plaintiffs filed a class action praying for an invalidation of annexation and a declaration that the same was unreasonable, unnecessary, and void as a matter of law. The real estate was annexed by the City of St. Charles pursuant to the provisions of § 71.014, RSMo.1969. The trial court rendered judgment adverse to the plaintiffs and they brought this appeal.

The property involved is a part of land which is known as the Commons of St. Charles. The United States Congress passed an act on January 27,1831, whereby the inhabitants of the City of St. Charles were granted all the right, title and interest of the United States in and to the adjoining areas known as the Commons of St. Charles. On November 11, 1844, the inhabitants of the City executed a 999 year lease in favor of John Frederick Schmiemeyer, and his assigns, on the land which forms the subject of this litigation.

Through a series of transfers, this leasehold interest was held by various individuals and eventually the interest in the land was sold to Joseph G. Shatro and Kathryn Shatro. The Shatros transferred the property to appellants by a series of warranty deeds in 1963,1964, and 1966. The warranty deed to the appellant Cork contained no reservations or limitations; however, the warranty deeds to appellants Smith and Westhues contained clauses stating: “SUBJECT to conditions, restrictions and easements of record.” The Shatros paid rent on this property to the City of St. Charles prior to the time they transferred their interest, and they continued to pay rent on the Commons property they retained. There was no evidence presented that the City had made a conveyance of this property other than the lease.

Chapter 5 of the Revised Ordinances of the City of St. Charles provides a procedure wherein a tenant can obtain a fee simple title. It provides that a tenant must surrender his leasehold interest to the City; petition the City for a deed in fee simple; pay the City the value of the property (the value to be determined as stated in the lease); and pay all of the expenses of the transfer and all arrearages of rent on such property. If the City attorney determines that the petitioner has acquired the interest he claims, still holds the same, and has complied with the above provisions, the City shall deliver to him a deed in fee simple.

The appellants never petitioned the City to obtain a fee simple interest.

The inhabitants of the City of St. Charles, in their corporate capacity, acting through the City Council, petitioned the City Council under § 71.014, supra, for the annexation of the tract of land to which they claimed the fee interest. On November 5,1974, the voters of the City approved the annexation. The City did not obtain the consent of any of the appellants.

The appellants contend that the court erred when it concluded that: 1) the fee simple title of the property lies with the City of St. Charles; 2) because the City held fee simple ownership the property could be annexed under the provisions of § 71.014; and 3) there were no facts showing that such annexation was unreasonable under the provisions of § 71.014.

In 1803 France ceded title to this property to the United States (Louisiana Purchase). In 1831 the United States transferred fee simple title to the City of St. Charles. Woodson v. Skinner, 22 Mo. 13 (Sup.Ct.1855); Bird v. Montgomery, 6 Mo. 510 (Sup.Ct.1840); Chouteau v. Eckhart, 7 Mo. 16 (Sup.Ct.1841), affirmed, 2 How. 344, 43 U.S. 344, 11 L.Ed. 293 (1844). The evidence shows that the City of St. Charles executed a 999 year lease on November 11, 1844, and that by a series of transfers the leasehold interest was acquired by the appellants.

While appellants admit that the leasehold interest was not converted to a fee simple interest under the procedures provided by the ordinances of the City of St. Charles, they claim that equity requires they be declared the owners in fee. They base this claim on the fact that they purchased the property by a warranty deed which they claim conveyed to them a fee interest; they have paid no rent; and they pay taxes on the property. (The lease provided for the payment of taxes by the tenants and for an annual rental in addition thereto.)

Although appellants may have acted as if they were owners in fee, it is a fundamental property law that a grantee takes only such interest in land as the grantor had when the conveyance was executed. While appellants allege that the warranty deeds conveyed to them a fee simple interest, the undisputed fact remains that the City of St. Charles retained the fee simple title. Appellants’ grantor had only a leasehold interest, and that is all the appellants could take.

The appellants contend that the court erred when it concluded that fee simple ownership of the subject property by the City of St. Charles allowed annexation of such property pursuant to the provisions of § 71.014. Plaintiffs contend that the defendant should have proceeded under § 71.015 which requires the filing of an action against the inhabitants of the area to be annexed. Under this section, as opposed to § 71.014, the annexing authority must show that the annexation is reasonable and necessary to its development and that normal municipal services can be provided within a reasonable time after the effective date of the annexation. Under § 71.014 the landowners offer their property for annexation and the annexing authority could then accept the landowners’ petition and submit it to the voters of the municipality for approval and thereby avoid the expense and aggravation of filing a declaratory judgment action.

The primary purpose of the statutory construction is to determine the intent of the legislature by the language used in the statute. State ex rel. Bravo Corporation v. Spradling, 515 S.W.2d 512 (Mo.1974); State ex rel. Schwab v. Riley, 417 S.W.2d 1 (Mo. banc 1967). In seeking the intent of the legislature, the court must give to statutory language its plain and rational meaning. Collier v. Roth, 515 S.W.2d 829 (Mo.App.1974); Consolidated Freightways Corp. of Delaware v. State, 503 S.W.2d 1 (Mo.1972); DePoortere v. Commercial Credit Corporation, 500 S.W.2d 724 (Mo.App.1973); Gas Service Company v. Morris, 353 S.W.2d 645 (Mo.1962). See § 1.090, RSMo.1969. Where a statute is clear, plain and unambiguous, provisions or limitations not plainly written or necessarily implied from what is written may not be interpolated herein to affect some modification of or change in the right conferred by the statute. Collier v. Roth, supra; Missouri Public Service Co. v. Platte-Clay Elec. Coop., 407 S.W.2d 883 (Mo.1966); St. Louis County Library District v. Hopkins, 375 S.W.2d 71 (Mo.1964).

Although the facts are somewhat unusual in that the City petitioned itself for annexation, § 71.014 is clear, plain, and unambiguous, and the City complied with its provisions. It is undisputed that the City of St. Charles is a city located within the county which borders a first-class charter county with a population in excess of 900,000. It is undisputed that the unincorporated lands involved here are contiguous to the existing corporate limits. We have determined that the City is the fee owner. The City complied with all of the provisions of § 71.014, and it was unnecessary for the City to proceed under § 71.015. The City, in its capacity as landowner, filed a verified petition requesting that the City, in its capacity as governing body, annex the land. There is no requirement that the tenants sign the petition.

Appellants next contend that the court erred when it concluded that it was presented with no facts showing that such an annexation was unreasonable under the provisions of § 71.014. The parties agree that the burden is upon the challenging party; to-wit, the appellants, in the determination of the unreasonableness of the annexation. St. Louis County v. Village of Champ, 438 S.W.2d 205 (Mo. banc 1969); St. Louis County v. Village of Peerless Park, 494 S.W.2d 673 (Mo.App.1973). The only evidence presented by the appellants which in any way would bear upon the reasonableness of the annexation was a map showing the existing boundaries and the annexation. Appellants contend that this shows that the annexation will make the boundaries irregular and is therefore unreasonable. While irregular boundaries are a factor in determining the reasonableness of an annexation, it alone is not determinative. City of St. Peters v. Kodner Development Corp., 525 S.W.2d 97 (Mo.App.1975). The appellants have failed to meet their burden.

The judgment of the trial court is affirmed.

McMILLIAN, P. J., and. STEWART, J., concur.

      . Sec. 71.014 provides:
      “Notwithstanding the provisions of section 71.015, RSMo 1969, the governing body of any city which is located within a county which borders a first class county with a charter form of government with a population in excess of nine hundred thousand, proceeding as otherwise authorized by law or charter, may annex unincorporated areas which are contiguous to the existing corporate limits upon verified petition requesting such annexation signed by the owners of all fee interests of record in all tracts located within the area to be annexed." (Emphasis added.)

      . These cases contain excellent recitations on the history of Commons property. Also, see Gill on Titles, §§ 6, 12, 14, 14A and 14B.


author: CLEMENS, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Leroy THOMAS, Appellant.
    No. 38192.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 17, 1977.

      Robert C. Babione, Public Defender, Blair Drazic, Asst. Public Defender, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Geo. A. Peach, Circuit Atty., Marion G. Eisen, Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

A jury found defendant Leroy Thomas guilty of second degree burglary. The trial court sentenced him to seven years’ imprisonment as a second offender. He appeals, asserting error in restricting his cross examination of two police officers, and in excluding jury argument about the absence of fingerprints on stolen items.

Defendant offered no evidence and does not challenge the sufficiency of the state’s evidence. In sum, the state’s evidence was: Two patrolling policemen saw a broken window in a warehouse garage door. A man, recognized by police as defendant, vaulted through the broken window. Another person was seen hiding outside the building but escaped. Defendant fled but was apprehended within 200 yards of the scene. After being given Miranda warnings, defendant said he was out of work, needed money, and for his personal gain he was forced to commit the burglary. Inventory of the warehouse showed over a hundred cases of candy were missing; four cases were found inside the garage door and three more outside the door.

Evidence technicians found defendant’s fingerprints on broken glass from the garage window. On cross examination the officer testified it was possible to recover latent fingerprints from cardboard boxes, but there was no evidence he had examined the boxes for fingerprints.

Defendant’s first point is that the trial court erroneously restricted his cross examination of the two police officers who had arrested defendant at the burglary scene. The court sustained the state’s objections to two questions. The first was how many times the officers had testified before, this for the announced purpose of showing the officers were thus able to fabricate statements without this being easily detected on cross examination. And, for the same purpose, asking the officers if they knew “what makes a good burglary case.”

Defendant frankly acknowledges he “can offer no authority directly on point.” He cites two cases on the general range of the trial court’s discretion to control cross examination-State v. Winters, 525 S.W.2d 417[14-19] (Mo.App.1975) and Roberts v. Emerson Electric Manufacturing Company, 362 S.W.2d 579[7-8] (Mo.1962). Neither is factually similar to our case and no error was found in restricting cross examination. Our own research finds no instance where restricting similar cross examination was held to be reversibly erroneous.

We acknowledge defendant’s right to show by cross examination “the interests and prejudices of the witnesses, with respect to the issues on trial, their relations to the parties, and the state of their feelings towards the parties.” State v. Day, 339 Mo. 74, 95 S.W.2d 1183[2-5] (1936). But the defendant’s proposed questions about how many times the officers had testified and their conclusions ás to what makes a “good burglary case” did not pertain to the issues on trial nor to their feelings toward defendant. The defendant’s right to cross examination is balanced by the principle that the permissible extent of cross examination on matters outside those testified to on direct examination is largely discretionary with the trial court. Parmley v. Henks, 285 S.W.2d 710[4] (Mo.1956).

We conclude defendant’s contention must be denied on two grounds: First, that “it is not proper to so frame the cross examinating questions that they are argumentative, or call for a conclusion,” and second, the right of cross examination is not unlimited and a trial court has wide discretion in deciding its permissible extent. State v. Johnson, 486 S.W.2d 491[4, 6-9] (Mo.1972). We conclude the trial court’s ruling did not constitute an abuse of discretion.

Defendant’s other challenge singles out the trial court’s order barring defense counsel from arguing the absence of fingerprints on the stolen cardboard cases. The only testimony about this was the technician’s answer on cross examination that it is harder to recover fingerprints from cardboard than from glass. The only evidence of searching for and finding fingerprints concerned the broken window glass; nothing about cardboard boxes.

State v. Wiggley, 515 S.W.2d 791[2, 3] (Mo.App.1974) holds it is not incumbent on the state to search for fingerprints and it is not error to exclude defense comment on the absence of such evidence where there is no evidence the fingerprints had been successfully taken. The trial court’s ruling is consistent with Wiggley. See also State v. Terry, 472 S.W.2d 426[8] (Mo.1971). We deny defendant’s second point.

Judgment affirmed.

DOWD and WEIER, JJ., concur.

      . “Appellate courts will interfere with the trial court’s exercise of discretion only when it has been manifestly abused; that discretion is abused only when the trial court’s ruling runs against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to show a lack of careful consideration and shock the sense of justice.” Kasper v. Helfrich, 421 S.W.2d 66[1-5] (Mo.App.1967).


text:
    STATE of Missouri, Respondent, v. Hubert Leroy DeCLUE, Appellant.
    No. 38406.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 17, 1977.

      Mcllrath, Black & Williams, Flat River, for appellant.
    John D. Ashcroft, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Albert G. Tindall, Pros. Atty., Washington County, Potosí, for respondent.
   CLEMENS, Presiding Judge.

A jury found defendant Hubert L. De-Clue guilty of tampering with a motor vehicle (§ 560.175, RSMo 1969) and fixed his punishment at two years’ imprisonment. He appeals, contending the court erred in giving the state’s verdict director MAI-CR 7.80 without including permissive paragraph Third: “That he did not tamper with such vehicle in the honest belief that Bobby Warden owned said car or had permission of the owner.”

The issue before us is whether the “honest belief” paragraph was supported by evidence that defendant “acted in good faith in the honest belief . . . that he had the permission of the owner.” (Note on Use to MAI-CR 7.80). We say no.

The essential evidence: Carl and Janet Wright’s parked and locked car was stolen at night from in front of their home. The next morning Sheriff Richards went to defendant’s residence to look for Wright’s car and found it partly stripped in a wooded area on his property.

Sheriff Richards testified: Defendant told him Robert Warden, a brother of car-owner Janet Wright, had asked defendant if he could bring a car onto his property; that defendant gave Warden permission and about 4:30 in the morning Warden drove the car onto the back of his property; that about 10:00 o’clock he went back there and saw Warden with the partly disassembled car; that he told the sheriff he got his tool box and helped Warden further disassemble the car because he knew that if he helped Warden he would “get more money out of him.” The sheriff asked defendant if he knew the car had been stolen and he said, “Yes,” but that he did not steal it.

The defendant denied making these statements and testified: He saw the car go by his house about 4:30 in the morning; that about 10:00 o’clock he went to the woods in back of his house and saw Warden disassembling the car. When asked, “And did you know that the car was stolen?” defendant answered, “No, sir.”

Defendant does not challenge the sufficiency of the state’s evidence, nor the propriety of paragraphs First and Second of MAI-CR 7.80 submitting that defendant tampered with the Wright’s car without their permission. He contends only that the evidence entitled him to exculpatory paragraph Third submitting his honest belief that Warden owned the car or had the Wright’s permission to disassemble it.

The state’s evidence that defendant knew the car was stolen refutes his “honest belief” contention. We look to defendant’s own evidence for support and find only his testimony that he did not know the car was stolen. This negative evidence falls short of the requirement that defendant acted in good faith in the honest belief that Bobby Warden owned the car, or had the Wright’s permission to possess and disassemble it. The trial court did not err in giving MAI-CR 7.80 without paragraph Third.

Judgment affirmed.

DOWD and WEIER, JJ., concur.


text:
    STATE of Missouri, Respondent, v. John R. BEVINEAU, Appellant.
    No. 38035.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 17, 1977.
    Robert C. Babione, Public Defender, Christelle Adelman-Adler, Asst. Public Defender, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Preston Dean, Philip M. Koppe, Asst. Attys. Gen., Jéfferson City, Geo. A. Peach, Circuit Atty., Evelyn M. Baker, Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

A jury found defendant John Bevineau guilty of first degree robbery of T. J. Coe and the trial court sentenced him as a second offender to 20 years’ imprisonment. Defendant appeals, contending error in denying his motion to suppress the victim’s in-court identification.

Sufficiency of the state’s evidence is not challenged. Victim Coe, a Californian, visited St. Louis and asked defendant for directions. Defendant walked along the street with Coe and met three friends. Suddenly Coe was struck from behind, felled, robbed and hospitalized. Three police officers identified defendant as the man they saw taking objects from Coe’s pockets, then running off; later defendant was apprehended in possession of Coe’s camera.

Clearly, defendant was trebly identified as the robber. His appellate challenge is leveled at the single identification by victim Coe, that being based on his pre-robbery observation and in the courtroom a year later. Coe’s identification was equivocal. He declined to make what he called an “absolute rigid identification" because he had not seen defendant for a year, but Coe added that defendant was “very similar” to one of the robbers. When asked pointblank if defendant was one of the robbers, Coe answered, “I think so, yes.”

Defendant now relies on cases precluding in-court identification tainted by impermis-sibly suggestive pretrial confrontation. There were no pretrial identification procedures here. Coe’s equivocal courtroom identification was based on his observation of defendant as they walked along the street just before being robbed.

A host of cases annotated in Mo.Dig., Criminal Law, including State v. Maxwell, 502 S.W.2d 382[9-12] (Mo.App.1973), support the terse statement in 22A C.J.S. Criminal Law, § 616: “The indefiniteness and uncertainty [of the identification] affect the weight, rather than the admissibility, of the testimony.” We hold the trial court did not err by denying defendant’s motion to suppress the victim’s in-court identification testimony.

Judgment affirmed.

DOWD and WEIER, JJ., concur.


text:
    Field DAVIS, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 38214.
    Missouri Court of Appeals, St. Louis District.
    May 17, 1977.
    Huck, Kasten & LaBeaume, James W. Huck, St. Louis, for movant-appellant.
    John Ashcroft, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Charles D. Sindel, Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Movant Field Davis appeals the denial of his Rule 27.26 motion alleging ineffective assistance of counsel by failing to subpoena an alibi witness. The state contends mov-ant’s evidence did not show counsel was incompetent in believing the witness would appear voluntarily and that movant failed to show he was prejudiced by non-appearance of the witness.

Movant, then defendant, was tried and found guilty of armed robbery and the conviction was affirmed on appeal. State v. Davis, 527 S.W.2d 32 (Mo.App.1975). The state’s evidence was that defendant accosted the victim at the door of his office and robbed him of $48, that police apprehended defendant while running away and found $48 in his possession. Defendant testified he had been in the home of Harrell Yeager, that he had “just stepped out the door” and had been arrested “moments later.” Yeager did not appear as a witness at the trial.

The trial court granted an evidentiary hearing on movant’s Rule 27.26 motion. He testified he had told his trial counsel, Mr. Thomas Prebil, that Harrell Yeager would testify that he and movant “were in his basement at the time the alleged robbery had went down.” (sic). Defendant was free on bond and as neighborhood “associates” movant saw Yeager frequently. He testified he did not talk with Yeager about the robbery charge as he thought Mr. Prebil would do that.

We note that at the evidentiary hearing movant failed to produce Yeager as a witness or to account for his absence. Movant thus failed to meet his burden of showing the degree of prejudice allegedly caused by Yeager’s absence at trial. Jackson v. State, 510 S.W.2d 707[1] (Mo.App.1974).

Mr. Prebil, a public defender, testified for the state. First through an investigator and then in person, Mr. Prebil had interviewed Yeager who said he would appear as an alibi witness. Mr. Prebil understood movant and Yeager were friendly and saw each other frequently. As trial approached Mr. Prebil told movant of the time and place and movant told Mr. Prebil he would contact Yeager about appearing. With this information, Mr. Prebil decided it was unnecessary to have Yeager subpoenaed. Yeager did not appear at trial and Mr. Prebil’s efforts to locate him then were fruitless.

Upon completion of the evidentiary hearing the trial court denied the post-conviction motion, finding that Yeager lived in the same neighborhood with the movant, that movant knew Yeager personally and had often seen him in the neighborhood while movant was free on bond; that defendant had told Mr. Prebil Yeager was a willing witness for movant and that Mr. Prebil had reason to believe Yeager would voluntarily appear at trial. The court thus found Mr. Prebil was not at fault in failing to subpoena Yeager.

The burden of proving grounds for the relief sought rested upon movant. The findings of the trial court are presumptively correct and must be sustained on appeal unless they are clearly erroneous. A determination that the trial court findings are clearly erroneous means that a finding is erroneous only when the reviewing court on the entire record has definite and firm conviction the trial court erred in finding movant was not denied effective assistance of counsel. Crosswhite v. State, 426 S.W.2d 67[1] (Mo.1968).

In Cheek v. State, 459 S.W.2d 278[2] (Mo.1970) the court ruled “an appellate court will not review or reassess by hindsight the judgment of defense counsel on questions of strategy, trial tactics, or trial decisions.” And, in Johnson v. State, 479 S.W.2d 416[6] (Mo.1972), the court rejected a contention of ineffective assistance of counsel, stating: “In the preparation of a case a lawyer is not required to be clairvoyant, and he must of necessity rely on information furnished him by his client."

Considering the record here in the light of cases cited above, we hold the trial court did not err in denying movant’s Rule 27.26 motion.

Judgment affirmed.

DOWD and WEIER, JJ., concur.


author: WEIER, Judge.

text:
    In re the MARRIAGE OF Mary N. BLANC, Petitioner-Appellant, and Claude J. Blanc, Respondent-Respondent.
    No. 37739.
    Missouri Court of Appeals, St. Louis District, Division Three.
    May 17, 1977.

      Earl L. Davis, St. Ann, for petitioner-appellant.
    Dallas W. Cox, Cox, Moffitt & Cox, St. Louis, for respondent-respondent.
   WEIER, Judge.

This appeal was taken from a decree dissolving the marriage of petitioner Mary N. Blanc and respondent Claude J. Blanc. The petitioner-appellant Mary N. Blanc does not contest the dissolution of the marriage. She has taken issue, however, with that portion of the decree which awards custody of the minor child of the parties to respondent subject to supervision of the County Domestic Relations Social Service and the resulting failure to award child support to her. She also contends that the court erred in not awarding attorney’s fees to her and in failing to award her a larger share of the marital property.

In brief, the facts are that petitioner left her employment and the home of the parties in St. Louis County and took up residence in the Bahama Islands in 1970. She remained there until the case was heard in October 1975 and evidenced an intent to remain there afterward. She took with her a substantial sum to which she was entitled out of the profit sharing fund of her employer. In addition she took an automobile, a portion of the savings account held in the joint names of petitioner and respondent and received sums from her husband.

We have read the transcript, the briefs and the authorities cited therein and have concluded that the decree of the trial court is supported by substantial evidence and is not against the weight of the evidence. We further conclude that the decree does not erroneously declare the law or apply the law. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

We further determine that an opinion would have no precedential value and that the judgment should be affirmed in accordance with Rule 84.16(b).

The judgment is affirmed.

KELLY, P. J., and GUNN, J., concur.


author: DOWD, Judge.

text:
    George Frank LINDNER, Petitioner-Appellant, v. STATE of Missouri, Respondent.
    No. 38129.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 17, 1977.

      Carr L. Woods, Asst. Public Defender, Bowling Green, for plaintiff-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, Jess Mueller, Pros. Atty., Troy, for defendant-respondent.
   DOWD, Judge.

Appellant George Lindner appeals from the denial, without evidentiary hearing, of his Rule 27.26 motion to vacate sentences imposed upon guilty pleas to 3 counts of robbery in the first degree. Appellant’s Rule 27.26 motion asserted three grounds for postconviction relief: (1) three charges of armed robbery were brought against appellant when only one armed robbery occurred; (2) appellant was “led to believe he was to receive a twelve year sentence on a plea of guilty under the terms of Plea Negotiation”; and (3) appellant had no attorney until preliminary hearing. On appeal, appellant contends he was entitled to an evidentiary hearing upon his motion because his motion raised issues of fact requiring hearing and because the trial court failed to make findings of fact and conclusions of law on all issues raised by his motion.

We do not reach the issue whether appellant was entitled to an evidentiary hearing upon the grounds asserted in his Rule 27.26 motion because the trial court did not make specific findings of fact and conclusions of law on each of the allegations raised by the motion as required by Rule 27.26(i). The trial court’s summary order denying appellant an evidentiary hearing and postconviction relief stated “the Court finds that the record of the transcript of proceedings on guilty pleas is determinative of all the issues raised by Petitioner’s Motion and that the Petitioner therefore is not entitled to an Evidentiary Hearing.”

Specific findings of fact and conclusions of law on each issue presented are required and will not be supplied by implication from the trial court’s ruling. A mere recital that the record shows movant is entitled to no relief is not sufficient. Harris v. State, 547 S.W.2d 519, 521[3] (Mo.App. 1977).

The judgment of the trial court is reversed and the cause remanded with directions to make specific findings of fact and conclusions of law in compliance with Rule 27.26(i).

CLEMENS, P. J., and SMITH, J., concur.

      . We note initially that appellant filed a brief prepared by “inmate counselor” in addition to the brief filed by his appointed attorney. The pro se brief contained 18 Points Relied On. The state filed a motion to strike the pro se brief alleging: (1) the jurisdictional statement did not comply with Rule 84.04(b); (2) the Statement of Facts did not comply with Rule 84.04(c); the Points Relied On did not comply with Rule 84.04(d); and the Argument portion of the brief did not comply with Rule 84.04(e). The court granted the state’s motion to strike the pro se brief. This opinion, therefore, considers only the brief filed by appointed counsel.


author: NORWIN D. HOUSER, Special Judge.

text:
    STATE of Missouri ex rel. John C. DANFORTH, Attorney General, Plaintiff-Appellant, v. W. E. CONSTRUCTION COMPANY and Floyd Edwin Harris, Defendants-Respondents.
    No. 37438.
    Missouri Court of Appeals, St. Louis District, Division Four.
    May 17, 1977.
    Motion for Rehearing or Transfer Denied June 9, 1977.
    Application to Transfer Denied July 11, 1977.
    John Ashcroft, Atty. Gen., Jefferson City, G. Michael Bauer, William L. Newcomb, Jr., Asst. Attys. Gen., St. Louis, for plaintiff-appellant.
    Pannell & Robinson, R. J. Robinson, Fes-tus, for defendants-respondents.
   NORWIN D. HOUSER, Special Judge.

Proceeding by the attorney general under the Merchandising Practices Act, Chap. 407, RSMo 1969, against. W. E. Construction Company, a corporation, and its president and chief stockholder, Floyd Edwin Harris, for injunctive relief. Following a six-day trial the court granted an injunction against the corporate defendant but not against the individual defendant. The attorney general appealed on behalf of the State, contending that the court erred in not enjoining the individual defendant.

Defendants developed several subdivisions in Jefferson County, platting and grading the land, building streets and constructing more than 100 homes, sold to the public through real estate agents.

The petition alleged and the issue tried was whether in connection with the sale, offer for sale and advertisement of dwelling houses and real estate defendants and their agents and employees used or employed deception, false promises, false advertising and misrepresentation, and concealed, suppressed and omitted material facts in their selling activities.

The trial court found that the corporation engaged the real estate agencies whose representatives made representations to purchasers of homes in the Quail Run Subdivisions (1) that their homes would be completed by specified dates, but they were not completed by the dates promised; (2) that Partridge Drive would be a dead-end street, which it was not; (3) that the streets in the subdivision would be constructed of concrete, but that they were rolled asphalt.

The trial court found that defendant Harris promised purchasers named Wibben-meyer that the corporation would assist them in moving into their new home in Quail Run Subdivision, but did not honor this promise; that he represented to two other purchasers of homes in the subdivision that Partridge Drive would be a dead-end street; and that he promised the Har-pers, who were dissatisfied with their purchase, that the corporation would build another home for them, but it was not built.

The court found the foregoing facts constituted violations of Chapter 407 “as against defendant W. E. Construction Company only but not against defendant Harris”; found the issues for plaintiff and against the corporation and for defendant Harris and against plaintiff, and entered judgment enjoining the corporation from promising or representing that a house will be completed or that a purchaser can close on a home by a certain date, or that dead-end streets will be built in subdivisions developed by the corporation, or that streets or roads in a subdivision built by the corporation will be concrete, unless such promises or representations are true.

We are not concerned on this appeal with the propriety of the findings and judgment against the corporation, since there is no appeal from the judgment against the corporation. We are concerned only with the propriety of the denial of injunctive relief against the individual defendant.

Appellant raises these points: that the court erred in concluding that defendant Harris did not violate the Act and in failing to issue an injunction against him, because under the statutory definitions in § 407.010, the evidence, and the court’s own findings of fact Harris’ guilt of wrongdoing is demonstrated; that the State’s evidence and the law support an order to protect the public interest, based on Harris’ personal wrongdoing and his position as principal stockholder and president of a corporation found guilty of wrongdoing; and that the court erred in concluding that the element of intent is a necessary component for a finding of a violation of the Act. Respondent contravenes these points and contends that under the standard of review prescribed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), the judgment should be sustained as to defendant Harris.

We do not reach the merits of this appeal for the reason that an overriding consideration demonstrates that there is no basis for injunctive relief.

Section 407.100, RSMo 1969, provides that if the court finds that a person has engaged or is engaging in any method, act, or practice declared to be unlawful by sections 407.010 to 407.130 “it may make such orders or judgments as may be necessary * * * to prevent the use of [or?] employment by such person of any prohibited methods, acts, or practices, * * (Our italics.) The language is not mandatory. Under § 407.100 the court is not required to issue an injunction; it is discretionary with the court. The statute follows the general law that an injunction is not a matter of right but its granting rests in the sound discretion of the court, to be exercised in accordance with well-settled equitable principles and in the light of all the facts and circumstances in the ease. State ex rel. Ellis v. Creech, 364 Mo. 92, 259 S.W.2d 372, 374[4] (banc 1953).

Trade regulation acts generally do not make it mandatory for the court to issue an injunction in every instance where it finds that a defendant in a proceeding brought thereunder has committed a violation. The issuance of an injunction in such cases is a matter of discretion. State ex rel. Johnson v. International Harvester Co., 25 Or.App. 9, 548 P.2d 176 (1976), citing Hecht Co. v. Bowles, 321 U.S. 321, 64 S.Ct. 587, 88 L.Ed. 754 (1944). In this connection see also United States v. U. S. Steel Corp., 251 U.S. 417, 445, 40 S.Ct. 293, 64 L.Ed. 343 (1920); Industrial Ass’n of San Francisco v. United States, 268 U.S. 64, 45 S.Ct. 403, 69 L.Ed. 849 (1925); Fram Corporation v. Boyd, 230 F.2d 931[1] (5th Cir. 1956); Parkway Baking Company v. Freihofer Baking Company, 255 F.2d 641, 649[18] (3rd Cir. 1958); Coca-Cola Co. v. Howard Johnson Co., 386 F.Supp. 330, 338-339[19] (N.D.Ga.1974); John Wright, Inc. v. Casper Corp., 419 F.Supp. 292, 326, fn. 20[58] (E.D.Pa.1976). In Parkway Baking Company, supra, 255 F.2d 1.c. 649, the court expressed the rule thusly: “The cases are legion which say that where there has been a cessation of the conduct complained of, at any time prior to judgment, it is a matter for the exercise of the discretion of the court, as to whether an injunction should issue. Under the facts of this case we do not believe that the court below abused its discretion.”

Although Harris flatly denied the charge, there was an evidentiary basis for the court’s findings that Harris made misrepresentations to two purchasers that Partridge Drive would be a dead-end street and broke promises he made to the Wibbenmey-ers and Harpers. Assuming the correctness of the court’s findings in these respects it was nevertheless within the proper exercise of the court’s discretion not to issue an injunction against defendant Harris personally, in view of the fact that he had ceased and desisted from engaging in the construction business, and presented no prospect of re-entering the field.

The uncontradicted facts and circumstances surrounding the parties at the time of the hearing of this case show that in the spring of 1974 the cash flow stopped. No more money was coming in. Outgo exceeded income. The work came to a halt. In May or June of 1974 the major creditors foreclosed first mortgages on the property located in the several subdivisions, thus depriving the corporation of all interest in the lands and unfinished houses. After foreclosure defendant Harris had no further control over the business; defendants ceased functioning as developers of subdivisions and went completely out of the business of constructing residences. Defendant Harris “ceased to exist” as president of the corporation. He had loaned the corporation personal funds in excess of a quarter of a million dollars and in addition had borrowed money until he was “borrowed out.” At time of trial in April, 1975 defendant Harris had lost the construction company, his interest in the several subdivisions, a separate heating and cooling business and was unemployed. There was no evidence, by way of threat, expressed hope or intention, or otherwise, to indicate any probability or even possibility that defendant Harris would resume operation in the field of subdivision development or home building.

“The purpose of an injunction is not to afford a remedy for acts that have been consummated, but only to prevent future mischief. Consequently, it is well recognized that rights already lost, and wrongs already perpetrated, cannot be corrected in such manner. [Citing cases.] Such being true, and there having been no showing that defendant Lamb Construction Company was threatening or intending to repeat the injury, it follows that no basis was established for relief by injunction against it.” Lademan v. Lamb Const. Co., 297 S.W. 184, 185-186[2] (Mo.App.1927).

“A court of equity will not afford an injunction to prevent in the future that which in good faith has been discontinued in the absence of any evidence that the acts are likely to be repeated in the future.” 43 C.J.S. Injunctions § 22 d., p. 445. And see 42 Am.Jur.2d Injunctions § 5, p. 731.

In determining whether the court abused its discretion in declining to enjoin defendant Harris there are facts and circumstances supportive of the court’s action in addition to the fact that Harris quit the subdivision and building business and is not likely to re-enter that field in the future. These relate to prolonged, almost unprecedented heavy rainfall and unusually adverse weather conditions which delayed operations; the sensitivity of Harris to the dissatisfaction of and complaints made by the purchasers of homes; Harris’ considerable efforts, personally and through his staff, to please the purchasers, relieve hardship cases, rectify errors and mistakes in construction, meet his obligations on target dates in completing houses and installing streets, grading lots and seeding lawns, replacing improperly installed concrete, repairing cracked foundations, supporting a sagging roof, rehanging and replacing improperly installed doors, etc.; the hiring of professional advice to evaluate various problems encountered, and devoting a quarter of a million dollars or more of personal funds to keep the operation going. The court’s findings of fact took account of several of these demonstrations of good faith on Harris’ part.

There was no basis for injunctive relief against defendant Harris. The court exercised a wise discretion in refusing to enjoin the individual defendant.

Judgment affirmed.

SIMEONE, C. J., and ALDEN A. STOCKARD, Special Judge, concur.


author: PER CURIAM:

text:
    STATE of Missouri, Plaintiff-Respondent, v. David Lewis POGUE, Defendant-Appellant.
    No. 10550.
    Missouri Court of Appeals, Springfield District.
    May 18, 1977.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    David G. Neal, Eminence, for defendant-appellant.
   PER CURIAM:

Defendant was jury convicted of manslaughter. The transcript on appeal recites: “Thereafter, on December 3, 1976, the Court made the following docket entry: ‘12-3-76 State appears by . . .; defendant in person and by attorney . . .; Motion for New Trial overruled; allocution granted; it is the order and judgment defendant be committed to Missouri Department of Corrections for five years in accordance with jury verdict . . .

Rule 27.11, V.A.M.R., provides: “Whenever a judgment upon a conviction shall be rendered in any court, the clerk of such court shall enter such judgment and sentence thereon fully on the minutes, stating briefly the offense for which such conviction shall have been had, and the court shall inspect such entries and conform them to the facts; but the omission of this duty, either by the clerk or judge, shall in nowise affect or impair the validity of the judgment or sentence.”

By approving the transcript, the parties thereby represent to us that it “correctly includes all of the record.” Rule 81.12(c), V.A.M.R. Therefore, we may assume that no judgment, as required by Rule 27.11, supra, was entered for the docket entry of December 3, 1976, supra, cannot be transmogrified into a judgment by merely being given that name in defendant’s notice of appeal. Williams v. Williams, 480 S.W.2d 525, 527 (Mo.App.1972).

The failure to enter the judgment required by Rule 27.11 is not the fault of the appellant. Consequently, his appeal will not be dismissed. However, it is essential, for the purpose of appellate review, that the judgment entry upon conviction be preserved and shown by the transcript on appeal. To that end we must hold the appeal in abeyance, remand the cause to the trial court for entry of judgment required by Rule 27.11, and reinstate the appeal upon receipt of a supplemental transcript containing said judgment. State v. Skaggs, 248 S.W.2d 635, 638[9-14] (Mo.1952); State v. Vinson, 337 Mo. 1023, 1027-1028, 87 S.W.2d 637, 640[8] (1935).

The appeal is ordered held in abeyance and the cause is remanded to the trial court with directions to enter judgment in accordance with the verdict.

All concur.


text:
    SAVEWAY GAS & APPLIANCE, INC., formerly Saveway L. P. Gas, Inc., Respondent, v. The INDUSTRIAL COMMISSION OF MISSOURI, DIVISION OF EMPLOYMENT SECURITY, Appellants.
    No. 10291.
    Missouri Court of Appeals, Springfield District.
    May 20, 1977.

      Stephen R. Mitchell, Parsons & Mitchell, P. C., Dexter, for respondent.
    Charles B. Fain, Jefferson City, for appellant Industrial Commission of Missouri.
    Terry C. Allen, William W. Clinkenbeard, Jefferson City, for appellant Division of Employment Sec.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   BILLINGS, Chief Judge.

Appeal by appellants, the Labor and Industrial Relations Commission and the Division of Employment Security, from a determination by the Circuit Court of Stoddard County that four claimants for benefits voluntarily terminated their employment with respondent Saveway Gas & Appliance, Inc., and reversing the order of the Industrial Commission that respondent was not an interested party and could not protest the claims for unemployment benefits. We hold the lower court exceeded its jurisdiction in finding the claimants had voluntarily left their employment but we affirm its judgment that respondent is an interested party and entitled to protest the claims for benefits.

Claimants filed their claims with the Sikeston office of the Division of Employment Security on February 26, 1973. Each of the claims set forth the employing unit’s name and address to be “Saveway Gas and Appliance, 115 East Stoddard Street, Dexter, Missouri.” The claims were forwarded to Jefferson City for processing.

On March 9, 1973, notice of the claims was received by respondent’s accountants in an envelope addressed “Saveway L.P. Gas Inc., c/o Day Spitzmiller Sisk [accountants], Box 272, Dexter, Mo.” The envelope and claims were forwarded by the accountants to respondent under postmark of March 12 and respondent lodged a protest on March 14. The following day, March 15, a deputy of the Division of Employment Security advised respondent its protest had not been timely filed and it thus did not qualify as an interested party and had no appeal rights to the issue raised by the protest. Respondent appealed this determination to the Appeals Tribunal of the Division of Employment Security and following a hearing that body affirmed the deputy’s determination. Review by the Industrial Commission was sought and obtained by respondent. The Industrial Commission remanded the matter to the Appeals Tribunal for an eviden-tiary hearing on the issue of the date of mailing the notices of initial claims to respondent. At such hearing testimony of the supervisors of the data processing operations, the mail room, and the benefit charge unit and determination computation subunit of the Division of Employment Security in Jefferson City was received. Thereafter, the Industrial Commission affirmed the earlier determination that respondent was not an interested party to the allowance of benefits to the claimants.

Respondent next filed a timely petition for judicial review in the circuit court. That court heard, over appellants’ objection, evidence in addition to that contained in the administrative record. The court’s findings and order followed.

We agree with the trial court that the mailing of the notices of initial claims to respondent’s accountants failed to meet the requirements of § 288.070.1, RSMo 1969. The applicable portions of the statute are as follows:

“Notice of each initial claim filed by an insured worker which establishes the beginning of his benefit year shall be promptly mailed by the division to each base period employer of such individual and to the last employing unit whose name is furnished by the individual when he files such claim. . . . Any such base period employer or any employing unit who within seven calendar days after the mailing of notice of the initial claim or a renewed claim to his or its last known address files a written protest against the allowance of benefits shall be deemed an interested party . . .

The statute requires the notice of initial claim to be mailed to the employing unit’s last known address. Here, the testimony of the division’s employees dealt solely with the ordinary procedure followed in processing claims. There was no evidence when the instant notices were in fact mailed from Jefferson City. The conclusion voiced by the supervisor of the mail room that they were mailed is simply that — a conclusion. Where mailing is an issue, there must be proof. “Not only was this testimony far short of proof that the original letter was placed in an envelope properly addressed, but there is no showing that the postage was prepaid, or as to how, when, or where it was mailed. Was it deposited with the daily outgoing mail to be afterwards placed in the post office, or, was it placed in a Government mail box by this witness? The witness evaded the question as to whether he mailed the letter by answering, ‘It was mailed, yes, sir.’ And even the answer was a mere conclusion of the witness.” Miller v. John Hancock Mutual Life Insurance Co., 155 S.W.2d 324, 328 (Mo.App.1941).

Appellants contend that the Commission “may infer that the notice at issue here was mailed and could have been delivered promptly as a matter of routine.” We disagree. The statute permits no such inference. There is no competent evidence as to when the notices were mailed and the uncontradicted evidence is that the notices arrived in Dexter on March 9, 1973.

We conclude the findings of fact and conclusions of law of the Industrial Commission on the issue of notice are not supported by substantial and competent evidence [§ 288.210, RSMo 1969] and the trial court did not err in reversing and remanding the proceedings to the Industrial Commission with directions that respondent be allowed to file protests as an interested party.

We agree with appellants, however, that the lower court exceeded its jurisdiction under § 288.210, RSMo 1969, in hearing additional evidence and ruling the question of the nature of claimants’ termination of their employment with respondent. This issue was not before the reviewing court and it remains the function of the trier of fact, the Industrial Commission in this case, to determine this factual dispute. See, Christian Board of Publication v. Division of Employment Security, 279 S.W.2d 55 (Mo.App.1955); State v. Randall, 275 S.W.2d 758 (Mo.App.1955).

The cause is remanded to the Circuit Court of Stoddard County with directions to set aside its finding on the issue of the nature of the claimants’ termination of their employment with respondent and remand the matter to the Industrial Commission for further proceedings consistent with this opinion.

All concur.

      . § 288.070 was amended by Laws 1974, p. 867, to increase the period to ten days.

      . The writer is not unaware of the delivery service of the United States Mail. Instances: 4 days for first class mail to arrive in Springfield from Jefferson City; 7 days for first class mail from Bloomfield to Springfield; 9 days for first class mail to travel from Waynesville to Springfield; 20 days for first class and insured mail from Memphis, Tenn. to Springfield. The General Assembly may have had similar service in mind when § 288.070 was amended. See footnote 1.


author: TITUS, Judge.

text:
    W. H. HARKEY, C. E. Summitt, Lowell T. Estes and Joe Browning, Plaintiffs-Appellants, v. Tom B. MOBLEY, Nell Mobley, Charles L. Miller, Louise Miller and Senath State Bank, a corporation, Defendants-Respondents.
    No. 10176.
    Missouri Court of Appeals, Springfield District.
    May 23, 1977.
    Motion for Rehearing or to Transfer to Supreme Court Denied June 9, 1977.
    Application to Transfer Denied July 11, 1977.

      James E. Reeves, Ward & Reeves, Ca-ruthersville, for plaintiffs-appellants.
    Wendell W. Crow, Ford, Ford, Crow & Reynolds, Kennett, for defendants-respondents.
    Before STONE, P. J., TITUS, J., and HENSON, Special Judge.
   TITUS, Judge.

The individual plaintiffs and defendants are stockholders of the Cardwell State Bank. Throughout 1972 (although plaintiff Browning was ineligible to serve as a director because of the provisions of § 362.-245-4, V.A.M.S.), the plaintiffs acted as four of the seven directors of the Cardwell bank. Defendant Miller was the bank’s president and, until the regular December 1972 meeting of the board, defendant Mob-ley was chairman of the board. Mobley was also a stockholder, president and chairman of the board of defendant Senath State Bank.

With their 1970 U. S. Census population shown parenthetically, we judicially note that the fourth class cities of Arbyrd (575), Cardwell (859) and Senath (1,484) are situate in the southern part of third class Dunklin County (33,742), and that Arbyrd is not more than ten miles from the other two cities. Moulder v. Webb, 527 S.W.2d 417, 419[4] (Mo.App.1975); Walsh v. Table Rock Asphalt Construction Co., 522 S.W.2d 116, 118[1, 2] (Mo.App.1975). The record reveals that the main offices of the Cardwell State Bank and the Senath State Bank are unsurprisingly located, respectively, within the cities of Cardwell and Senath, and that the events giving rise to this action would not have occurred but for the enactment of H.B. 838 by the 76th General Assembly. Laws of Missouri, 1972, p. 975.

In July 1972 the Senath bank applied to and in September 1972 received from the director of finance authority to operate and maintain a separate banking facility at Ar-byrd for the limited purposes specified in § 362.107, V.A.M.S. Albeit there was “street talk” in Cardwell in the summer of 1972 about the Senath bank putting in an Arbyrd facility, and although at least one of the plaintiffs had talked of the matter with defendant Mobley, the subject was never discussed at any meeting of the Card-well bank board until a special meeting was called in October 1972, and the Cardwell bank at no time sought authority to establish a branch at Arbyrd. At the regular December 1972 board meeting of the Card-well bank which defendant Mobley did not attend because he was recuperating from surgery, the attending members (including plaintiff Browning) voted to remove Mob-ley as chairman of the board on account of his alleged activity in securing the Arbyrd facility for the Senath bank. The attending members also authorized filing a suit by the Cardwell bank against Mobley and the Senath bank to enjoin construction of the Senath branch.

While plaintiffs cede that defendant Mobley and members of his family do not control the Cardwell bank, at the January 1973 annual meeting of shareholders, the individual defendants (Mobley et ux. and Miller et ux.) were elected to the board of directors. At the directors’ meeting which ensued, the defendants secured approval of a resolution calling for dismissal of the aforementioned suit against Mobley and the Senath bank.

Plaintiffs describe the present suit as “a stockholder’s [sic] derivative action in two counts.” Count I seeks removal of the individual defendants as directors of the Card-well State Bank; Count II sought to enjoin operation of the branch banking facility at Arbyrd by the Senath State Bank. The court resolved the issues against the plaintiffs and they have appealed.

Sans express statutory authority and absent, as here, allegations of fraud, courts of equity have no jurisdiction to remove directors or officers of a private corporation on the ground of mismanagement of the affairs of the corporation, neglect or other causes. The only power of amotion is in the corporation itself. Neither do courts have authority, absent statutory power, to grant injunctions restraining officers from performing their corporate duties since this would have the same effect as their removal. Griffin v. St. Louis Vine & Fruit Growers’ Association, 4 Mo.App. 595, 596[1] (1877); Feldman v. Pennroad Corporation, 60 F.Supp. 716, 719[9] (D.C.Del.1945), aff’d, 155 F.2d 773 (3rd Cir. 1946); 2 Fletcher Cyclopedia Corporations (Perm. Ed.) § 358, pp. 170-174; 19 C.J.S. Corporations § 738 b., pp. 74-75; 19 Am.Jur.2d, Corporations, § 1111, pp. 550-551; Annot., 124 A.L.R. 364-373.

From Laws of Missouri, 1877, to § 5366 RSMo 1939 (repealed Laws of Missouri, 1943, p. 410, et seq.), the circuit courts of Missouri had “jurisdiction over the directors, managers, trustees and other officers of corporations . . . third, to suspend any director, trustee, manager or other officer from exercising his office whensoever it shall appear that he has abused his trust; fourth, to remove any such director, trustee or other officer upon proof or conviction of gross misconduct; . . ..” See Historical Note following § 351.485, V.A. M.S. However, the repeal of those just recited statutes had the effect of blotting them out completely as if they never existed (82 C.J.S. Statutes § 434, pp. 1008-1009) and stripped the courts of the jurisdiction previously created by the voided laws. Of course, the reported cases relying on the jurisdiction of the courts granted by the repealed laws, would not be authority subsequent to statutory abolition. The provisions of § 351.485 have no application here as plaintiffs did not seek the court’s equity jurisdiction to liquidate the assets and business of the corporation. Likewise, we are not concerned with the provisions of § 361.-270, V.A.M.S., as this cause was not suggested by the commissioner of finance through proceedings instituted by the attorney general. The court nisi was correct in ruling it had no jurisdiction to remove the individual defendants as directors of the Cardwell State Bank.

Everyone is presumed to know the law. Hartley Realty Company v. Casady, 332 S.W.2d 291, 295[4] (Mo.App.1960). Therefore, as acting directors of the Card-well bank, plaintiffs were held to have knowledge that, effective August 13, 1972 (Laws of Missouri, 1972, p. 4), a state bank in Dunklin County could seek authority to maintain and operate a separate banking facility in another town with a population not exceeding 1,550 which had no banking facilities and which was within 10 miles of the applying bank. Farmers & Merchants Bank of Eureka v. Boland, 175 S.W.2d 939, 947[7] (Mo.App.1943).

Plaintiffs chant conspiracy, but whether a conspiracy was formed is not a matter of material importance if the acts of the alleged conspirators were legal. Atkins v. Hughes, 208 Cal. 508, 282 P. 787, 789 (1929). It would be futile to contend that it was illegal for defendant State Bank of Senath and defendant Mobley to plan an undertaking to operate a banking facility at Arbyrd as authorized by law. Plaintiffs’ charge against Mobley lies in his averred silence, i. e., that defendant Mobley’s failure to disclose to the Cardwell board the intentions of the Senath bank to secure the Arbyrd branch, deprived the Cardwell bank of an opportunity to acquire the facility for itself or to oppose the application made by the Senath bank. However, plaintiffs’ accusations smack of the pot calling the kettle black, for despite plaintiffs’ presumptive knowledge of the law, despite the “street talk” regarding the matter and despite the fact that at least one of the plaintiffs was apprised of the situation by Mobley himself, none of the plaintiffs broached the subject at any meeting of the Cardwell bank board until October 1972, and none suggested action until December 1972 or approximately three months after the Senath bank had received its authority. The trial court found, and we agree, that “all [Cardwell] bank officials had the same opportunity to have knowledge of the new law.”

After making extensive findings of fact and conclusions of law, the trial court concluded “that the plaintiffs have failed, by their evidence, to prove their actions against the defendants.” We concur and affirm the judgment nisi.

All concur.

      . H.B. 838 — “, . . any bank with its main banking house in a county of the third class with a population of not more than thirty five thousand may establish, maintain, and operate one separate facility in that county in a town with a population of not more than one thousand five hundred and fifty which does not having banking services and which is not more than ten miles from the main office of the bank.”


author: STONE, Judge.

text:
    EMPIRE GAS CORPORATION, a corporation, Plaintiff-Appellant, v. Billy RANDOLPH, Defendant-Respondent.
    No. 10087.
    Missouri Court of Appeals, Springfield District.
    May 26, 1977.

      Darrell Deputy, Jr., Lebanon, for plaintiff-appellant.
    Orville C. Winchell, Lebanon, for defendant-respondent.
   STONE, Judge.

Plaintiff Empire Gas Corporation (Empire) instituted this action in the Circuit Court of Laclede County for injunctive relief to enforce a restrictive covenant in an employment contract with defendant Billy Randolph. Upon application to the Magistrate Court of Laclede County, presumably with a showing that no circuit judge was then within the county [§ 526.020] , the magistrate judge issued a temporary restraining order. In due time, a plenary trial of the issues was had in the circuit court and several weeks thereafter the court entered its “Judgment of Dismissal” in which it was recited, inter alia, and decreed that:

“. . . [T]he cause was, by the court, taken under advisement, and thereafter ... the court having filed its Findings of Fact and Conclusions of Law;
“IT IS NOW ORDERED, ADJUDGED AND DECREED BY THE COURT that plaintiff has failed to produce evidence sufficient to sustain plaintiff’s petition, and said petition is herewith dismissed with prejudice, and . . . ORDER GRANTING TEMPORARY RESTRAINING ORDER, is dissolved.” (All emphasis herein is ours.)

Its motion for new trial having been overruled by operation of law [Rule 78.06], Empire filed a timely notice that it “appeals from the overruling of its motion for a new trial . . . .” The right of appeal is purely statutory, as is recognized by Rule 81.01; and it is clear that an order overruling a motion for new trial is not appealable. § 512.020; State ex rel. State Highway Commission v. Kendrick, 383 S.W.2d 740, 742(1) (Mo.1964); Matter of Langford’s Estate, 529 S.W.2d 31, 32(1) (Mo.App.1975). But, with the “reluctant indulgence” occasionally acknowledged [e. g., Slusher v. Schaffner, 495 S.W.2d 135, 136 (Mo.App.1973)], we indulge this disregard of the rules [In re E_, 416 S.W.2d 678, 679(1) (Mo.App.1967)] and, as our appellate courts have been wont to do, treat the notice of appeal as if it had properly designated the judgment. City of Joplin v. Joplin Water Works Co., 386 S.W.2d 369, 370(2) (Mo.1965); Kemlite Corporation v. Chase Awning and Manufacturing Co., 503 S.W.2d 131, 132(1) (Mo.App.1974).

However, we immediately encounter more formidable obstacles to consideration and determination of the appeal on its merits. Pursuant to the request of counsel, the court prepared and, as noted in the “Judgment of Dismissal” supra, “filed its Findings of Fact and Conclusions of Law.” Although “[t]he findings of the court?’ are listed among the “Specific Contents” enumerated in Rule 81.14(a) which “[t]he transcript on appeal shall always include . . . ”, the findings of the trial court in the case at bar are conspicuously missing in the transcript on appeal. This void is particularly material on the instant appeal, where each of the five “Points Relied On” in appellant’s brief charges error in one of the trial court’s findings, none of which were presented in quotation marks or as being precise and complete. And, even if there had been any tendered quotation in the brief, we could not have accepted it as a substitute for “record proof” in the transcript on appeal. In re Jackson’s Will, 294 S.W.2d 953(1) (Mo.App.1956); Missouri Pacific R. Co. v. Rental Storage & Transit Co., 524 S.W.2d 898, 907(9) (Mo.App.1975); Landers v. Smith, 379 S.W.2d 884, 887(4) (Mo.App.1964).

Additionally, none of the seven exhibits received in evidence, two of which were defendant’s employment contract and his subsequent “memorandum of resignation,” were included in the transcript and none of them have been filed or deposited with the clerk of this court, although the case was submitted on briefs some months ago pursuant to our Special Rule 1(b). Hence, the intendment and content of such exhibits must be taken as favorable to the trial court’s ruling and as unfavorable to appellant. Godsy v. Godsy, 531 S.W.2d 547, 553(9) (Mo.App.1975); Kewanee Oil Co. v. Remmert-Werner, Inc., 508 S.W.2d 23, 27 (Mo.App.1974); Lange v. Baker, 377 S.W.2d 5, 7(4) (Mo.App.1964).

If an appellant desires review of an issue it is clearly his duty to provide a complete transcript conformable to Rule 81.14 and containing all records, proceedings and evidence relating to such issue. Davis v. Long, 521 S.W.2d 7(3) (Mo.App.1975); Edwards v. Hrebec, 414 S.W.2d 361, 366(8) (Mo.App.1967). See Brand v. Brand, 245 S.W.2d 94, 96(4) (Mo.1952). On the transcript before us sans the exhibits and the trial court’s findings of facts and conclusions of law, we are in no position to rule the points presented in plaintiff-appellant’s brief and the appeal should be dismissed.

It is so ordered.

BILLINGS, C. J., concurs.

HOGAN, TITUS and FLANIGAN, JJ., concur.

      . All references to statutes are to RSMo 1969, V.A.M.S., and all references to rules are to the Supreme Court Rules of Civil Procedure, V.A. M.R.


author: COOPER, Chief Justice.

text:
    Eugene HARRIS, Appellant, v. James C. WITT, Appellee.
    Supreme Court of Tennessee.
    June 6, 1977.
    Eugene Harris, pro se.
    J. Curwood Witt, Madisonville, for appel-lee.
   COOPER, Chief Justice.

OPINION

This is an appeal from an order entered in the Circuit Court of McMinn County dismissing the complaint filed on April 3, 1976, by Eugene Harris, now confined in the state penitentiary at Petros, Tennessee, against Judge James C. Witt.

In the complaint Mr. Harris sought damages allegedly resulting from the dismissal on March 15, 1975, of a post conviction petition by Judge Witt. Mr. Harris alleged that the post conviction petition contained sufficient grounds for relief, and that Judge Witt was in error in dismissing the petition on the ground appellant was serving “a sentence previously imposed upon him in another jurisdiction.” Appellant alleged that, as the result of the wrongful dismissal of the post conviction petition, he had been confined an “additional time" and was entitled to damages.

On motion of counsel for Judge Witt, the trial judge dismissed the complaint for failure to state a cause of action, and for the further reason that the action, if stated was barred by the statute of limitation and also by the doctrine of judicial immunity. We affirm his action.

If, in fact, Judge Witt committed error in dismissing the petition for post conviction relief, appellant’s relief was by way of an appeal from the ruling, not by an action for damages against Judge Witt. It is generally recognized that a judge is immune from civil liability for bona fide acts done in the exercise of his judicial function while acting within the limits of his jurisdiction. Heath v. Cornelius, 511 S.W.2d 683 (Tenn.1974); Webb v. Fisher, 109 Tenn. 701, 72 S.W. 110 (1902); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); 48 C.J.S. Judges § 63.

As pointed out in Heath v. Cornelius, supra at page 684,

“The rule (of judicial immunity) was created not for the benefit of the individual judge, but for the benefit of the people; the doctrine protects the judiciary from vexatious lawsuits by dissatisfied litigants, thus avoiding a trend which would ‘contribute not to principled and fearless decision making but to intimidation.’ ”

Further, the action brought by Mr. Harris was for an injury to the person. The limitation on the bringing of such an action is one year. T.C.A. § 28-304. The petition shows on its face that the petition for post conviction relief was dismissed more than one year before the action for damages was filed.

Judgment is affirmed. Costs are adjudged against the appellant, Eugene Harris.

FONES, HENRY, BROCK and HARBI-SON, JJ., concur.