author: ROBERT R. WELBORN, Special Judge.

text:
    Maurice E. JENKINS et al., Plaintiffs-Appellants, v. Walter ANDREWS et al., Defendants-Respondents.
    No. KCD 27197.
    Missouri Court of Appeals, Kansas City District.
    Aug. 4, 1975.

      Richard N. Brown, Brown & Casey, Brookfield, for plaintiffs-appellants.
    Utz, Litvak, Thackery, Utz & Taylor, St. Joseph, Cleaveland & Macoubrie, Chilli-cothe, for defendants-respondents.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Action for damages arising out of claimed abuse of process. In each of three counts, plaintiffs sought punitive damages of $5,000,000 and actual-damages of $1,100 on Count I, $100,000 on Count II and $5,000 on Count III. This appeal is from order of trial court dismissing the petition with prejudice.

The plaintiffs in this case are Maurice E. Jenkins, his wife, Hazel, and their son, Phillip. The defendants are the members of the board of directors of Chariton County Grain Company, Incorporated, at the time of its liquidation in September, 1964.

On December 18,1965, the Carroll County Circuit Court entered judgment against Maurice E. Jenkins for $6,840.07, in favor of Chariton County Grain Company, Incorporated.

Execution issued on the judgment and on August 5, 1966, an effort was made to levy on personal property on the farm owned and operated by Maurice Jenkins and his wife in Chariton County. Actions of the defendants in connection with this effort form the basis for Count I of the petition in this ease. The attempted levy on the personal property was unsuccessful.

On October 5,1966, the defendants served upon Jenkins notice to the effect that they would enforce their judgment by levying upon real estate owned by Jenkins and situated in Linn County. Execution sale was held on November 7, 1966, and defendant Robert Madget purchased the interest of Maurice Jenkins for $500. Madget thereafter brought suit against defendants here to quiet his title therein and was successful, with the court setting aside two deeds as having been made with intent to defraud creditors. The judgment of the trial court was affirmed by the Supreme Court in Madget v. Jenkins, 461 S.W.2d 768 (Mo.1970). The acts of the defendants relating to this procedure are involved in Count II of defendants’ petition.

In July, 1965, plaintiffs Maurice and Hazel Jenkins borrowed $65,000 from Phoenix Mutual Life Insurance Company. They executed a single note for the indebtedness, secured by a deed of trust on their Linn and Chariton County farms. In March, 1970, the defendants, other than Madget, purchased the note. On April 15, 1970, the purchasers of the note notified plaintiffs that their failure to pay taxes on the Linn County property for 1967, 1968 and 1969 constituted a default under the deed of trust and demanded payment of the amount due on the note. Both the Chariton and Linn County farms were advertised for sale under the deed of trust securing the note. Plaintiffs filed suit in the Linn County Circuit Court for a declaratory judgment and injunction against the sale. After the decision in Madget v. Jenkins, supra, in the Supreme Court, judgment was entered denying plaintiffs relief. The action of the defendants relating to the enforcement of the deed of trust forms the basis for Count III of the petition.

The present action was begun in the Linn County Circuit Court July 29, 1971. Defendant Madget filed a separate motion to dismiss. The other defendants filed a joint motion. These motions were overruled February 22, 1972. Defendant Madget filed a separate answer. The remaining defendants filed a joint answer.

On October 10, 1972, one of the defendants filed an affidavit for disqualification of Judge Green of the Linn County Circuit Court. The application was sustained and Judge J. Morgan Donelson was assigned to hear this case.

On December 14, 1973, the defendants filed an amended motion for summary judgment or in the alternative to dismiss plaintiffs’ petition. On December 21, 1973, a hearing on the motion was held before Judge Donelson. At the conclusion of the presentation of the motion and argument of counsel, the trial court indicated its intention to overrule the motion for summary judgment, but to sustain the motion to dismiss unless an amended petition was filed. Counsel for plaintiffs asked leave to amend and the trial court, granted 30 days for such purpose.

On January 18, 1974, plaintiffs filed application for a change of judge. Defendants objected to the application and the cause was again taken up by Judge Donel-son on January 28, 1974. Following argument, he entered an order overruling the motion for summary judgment, but sustaining the motion to dismiss and dismissed the petition, with prejudice. Then, he sustained plaintiffs’ application for change of judge. This appeal followed.

In this court the first assignment of error is based upon the trial judge’s failure to disqualify himself prior to ruling on the defendants’ motion to dismiss. Appellants contend that the application for disqualification met the requirements of Rule 51.05, V.A.M.R., and that the application was timely, so that nothing remained for the judge to do but to take the steps necessary to substitute another judge. Respondents contend that the application was not timely insofar as their motion to dismiss was concerned because it was filed after the matter had been heard and while the court had it under advisement.

Appellants rely upon paragraph (b) of Rule 51.05, as follows:

“(b) The application must be filed at least thirty days before the trial date or within five days after a trial setting date has been made, whichever date is later, unless the trial judge has not been designated within that time, in which event the application may be filed within ten days after the trial judge has been designated or at any time prior to trial, whichever date is earlier.”

Appellants apparently assume that their motion was within the literal limits of the rule, inasmuch as they have filed no reply to respondents’ argument on that issue.

It has long been settled in this state that the right to disqualify a judge is not to be employed “to produce inconvenience and absurdity.” In Ex Parte Cox, 10 Mo. 742 (1847), issues in a divorce action had been tried by a jury and after their verdict, the defendant applied for a change of venue on grounds of prejudice of the judge. In ordering the trial court, by mandamus, to proceed with the cause, the Supreme Court stated (10 Mo. 743):

“Our statute which authorizes a change of venue in civil cases does not in terms declare at what period of the cause such orders may be made. There can be no doubt, however, that it never was contemplated that the progress of a suit could be interrupted at any period by such applications. The law must be construed with reference to the practice of other courts and our courts, so as not to produce inconvenience and absurdity. We need not, in this case, undertake to fix any particular period, beyond which such applications should be disregarded but we do not hesitate to say that, after the issues have been made up and tried, it is too late for complainant to come in and swear that the judge is prejudiced. No special facts are stated to account for this untimely application. If any prejudice existed on the part of the judge, it must have existed before the suit was tried. Is a party to lie by until near the close of a trial, and when the developments elicited in its progress have induced a belief that the result will be unfavorable, to be then permitted to abandon the tribunal he has himself selected, and try the chances of some other jurisdiction? Such a course would tend to endless litigation. We will not presume that such a proceeding was designed to be tolerated, unless the Legislature shall expressly say so.”

That ruling was followed in Woodrow v. Younger, 61 Mo. 395 (1875). In that case, a referee had been appointed and had made his report and exceptions to it had been filed. Before the court could act on the report and exceptions, the defendant applied for a change of venue for prejudice of the judge. The trial court refused the application and its ruling was held not error, the court relying on Ex Parte Cox, supra. The court stated (61 Mo. 397):

“ * * * It is clear that the change of venue asked, if granted, would have involved the necessity of another reference, and, consequently, the introduction of new evidence, and so in this way virtually allowed a new trial, without regard to the results of the first investigation or the opinion of the court upon it, and thus suits could be indefinitely protracted.”

See State ex rel. Darling and Company v. Billings, 435 S.W.2d 377 (Mo. banc 1968) distinguishing Woodrow v. Younger in a case where application to disqualify the judge was held timely when made after appointment of a referee but before the referee had undertaken to hear the matter.

In State ex rel. Reeder, et a1. v. Foard, 268 Mo. 300, 188 S.W. 71 (banc 1916), the court held that the organization of a drainage district, including the hearing of exceptions to commissioners’ report, was a single proceeding and that an attempted disqualification of the judge after the decree of incorporation and filing of commissioners’ report and exceptions thereto was untimely. In so holding the court stated (188 S.W. 74):

“It would be a hazardous doctrine to say that, after a judge had partially heard a case, a party thereto could stop that hearing by procuring a change of venue upon the ground of prejudice of the judge, then actually trying the case.”

In Browder v. Milla, 296 S.W.2d 502 (Mo.App.1956), the court in a court-tried case refused to give literal application to the provision of § 508.120, RSMo 1949, V.A. M.S., requiring filing of a request for change of venue within five days after knowledge of the existence of the cause therefor comes to a party’s attention, when the motion for change of venue for prejudice of the judge was filed during a four-day recess, after evidence had been heard.

None of these cases involved the present situation and the current Rule 51.05 has been in effect only since September 1, 1973 and has not been previously considered in this regard. However, these prior cases are important for their recognition that something other than the literal language of a statute or rule governing disqualification of a judge may be considered in determining whether or not an application for such purpose is timely.

In this case, the motion for summary judgment and to dismiss had been taken up by the court. Evidentiary material, in the form of transcript of other causes and depositions, had been submitted in connection with the motion for summary judgment. The motion had been fully argued by both sides. Counsel for appellants apparently acquiesced in the court’s suggestion that amendment of the petition would be required. Counsel requested 30 days time for such action which was granted and, the motion of defendants was continued. To permit appellants to disqualify the judge, rather than to file their amended petition, would nullify the hearing which had been held, result in a duplication of the proceeding already undertaken and permit appellants to take advantage of a tentative expression of opinion by the trial judge on the matter submitted to avoid his action upon it. Such result is not required by Rule 51.05. Under the cases above cited, the action of the trial court in ruling on the motion previously submitted before acting on the disqualification was not error.

Turning to the contention that the trial court erred in sustaining defendants’ motion to dismiss, the amended petition before the court read as follows:

“Come now Plaintiffs, by their attorneys, and for their cause of action allege:

“1. Defendants Walter Andrews, B. W. Andrews, Ralph Welsh, Everett Welsh, and Robert Madget are five of the six partners who operated a business known as the Chariton County Grain Company, which business was incorporated under the same name on the 2nd day of April, 1959.

“2. On or about the 3rd day of September, 1964, the said Chariton County Grain Company was liquidated, the Defendants being the shareholders of said corporation at that time.

“3. Pursuant to proceedings in the case of Chariton County Grain Company, Incorporated vs. Maurice E. Jenkins and Hazel Jenkins, husband and wife, Case No. 7303 in the Circuit Court of Carroll County, Missouri, the Court entered its judgment therein on the 18th day of December, 1965, finding that the Plaintiff corporation was to have and recover of the Defendant Maurice °E. (Jack) Jenkins the sum of $6,840.07, with interest at the rate of six (6%) per cent per annum from the 1st day of March, 1960, until paid and the costs incurred therein.

“COUNT I

“4. On or about the 5th day of August, 1966, Defendant Robert Madget together with other agents of said Defendants appeared at the farm then owned and operated by Plaintiffs Maurice E. Jenkins and Hazel I. Jenkins, his wife, in Chariton County, Missouri, and:

“a. The said Robert Madget and the said agents then and there and upon the Plaintiff’s Linn County farm, attempted to levy upon the personal property found upon said farms, without regard to ownership and without regard to demand for bond properly made by third-party claimants to said property; and

“b. Trespassed upon the property of Plaintiffs Maurice E. Jenkins and Hazel I. Jenkins, his wife, leaving open gates and stampeding the stock then belonging to Plaintiff Hazel Jenkins, causing:

“(1) A black sow of the reasonable value of $100.00 to become overheated and die therefrom; and

“(2) Gates to remain open and allowing cattle in the pasture upon said Linn County farm to enter into and upon beans in another field thereof belonging to Plaintiff Phillip Jenkins, trampling and destroying the same to the damage of approximately $500.00.

“WHEREFORE, Defendants and their agents having wrongfully abused the process to which they were entitled, Plaintiffs pray for judgment in amount of $100.00 for the reasonable value of the hog destroyed by Defendants’ wrongful acts, for $1,000.00 damages in accordance with Section 537.350 RSMo (1969), for punitive damages in amount of $5,000,000, and for their costs expended herein.

“COUNT II

“5. On or about the 5th day of October, 1966, Defendants and their agents caused to be served upon Maurice E. (Jack) Jenkins a notice to the effect that they were levying and would sell on the 7th day of November, 1966, real estate belonging to him and situated in Linn County, Missouri, purportedly by execution upon the judgment of Chari-ton County Grain Company, Incorporated, in the said Case No. 7303 in the Circuit Court of Carroll County, Missouri, and:

“a. Although authorized by law, said sale and the events subsequent thereto were conducted with the intent of denying Plaintiff Maurice E. Jenkins access to and use of any of his properties, real, personal or mixed, as collateral upon which to raise the moneys to pay said judgment, although a suit to clarify the title to the land upon which they sought to levy could have been conducted prior to levy so as not to cast a cloud upon all assets available to the said Maurice E. Jenkins and make it impossible for him to consider either satisfaction or compromise of said judgment; and

“b. On the said 7th day of November, 1966, Defendant Robert Madget purchased the right, title and interest of Maurice E. Jenkins in said Linn County lands, consisting of approximately 400 acres, for a total price of $500.00 at a sale conducted under said levy and execution; and, upon receipt of the Sheriff’s Deed thereto, the said Robert Madget immediately filed a suit to quiet his title therein, alleging that the interests of everyone except the said Maurice E. Jenkins were established by fraudulent conveyances. Said suit continued to tie up the entire property interests of said Maurice E. Jenkins and the remaining Plaintiffs as the lands in question were security, together with all other lands they owned, for a single note executed in June of 1965 to the Phoenix Mutual Life Insurance Company, which note the said Defendants continuously attempted to purchase from and after the time prior to when they instituted said suit.

“c. The aforesaid events were an abuse of process directed not to collection of said judgment and interest thereon, but to seeking and obtaining an inequitable forfeiture of Plaintiffs’ rights in said Linn County lands while preserving most or all of the judgment then owned by Defendants individually for further attempts in stripping Plaintiffs of their properties.

“WHEREFORE, Plaintiff Maurice E. Jenkins prays for judgment in amount of the interest accruing upon the said Chariton County Grain Company judgment from and after the 7th day of November, 1966, and Plaintiffs further pray for the fair market value of the rights in said Linn County lands purchased for a nominal amount at said November 7, 1966 sale, to-wit: $100,-000, for punitive damages in amount of $5,000,000 and for their costs expended herein.

“COUNT III

“6. On or about the 30th day of March, 1970, Defendants (except Robert Madget) purchased and took assignment of a single note executed by Plaintiffs Maurice E. Jenkins and Hazel I. Jenkins to the Phoenix Mutual Life Insurance Company, together with separate Deeds of Trust pledging the aforesaid Linn County lands and separate Chariton County lands as security therefor, said Deeds of Trust being recorded in Book 390, at Page 172, Linn County, Missouri, and in Book 88, at Page 95, Chariton County, Missouri; and:

“a. On or about the 15th day of April, 1970, said Defendants had a notice served upon Plaintiffs Maurice E. Jenkins and Hazel I. Jenkins, his wife, stating that their failure to pay taxes upon the Linn County lands (covered by the Deed of Trust recorded in Book 390, at Page 172, Linn County, Missouri) for the years 1967, 1968 and 1969 were deemed by them to constitute a delinquency under said Deed of Trust and therefore also a delinquency under said single note; that said delinquency under said note was deemed by said Defendants to be grounds for them to declare the entire balance of said note immediately due and payable and that they so demanded payment. Upon the said 15th day of April, 1970, the judgment of the Circuit Court of Carroll County, that, in part, the title to said Linn County lands was in Defendant Robert Madget from and after the 5th day of January, 1967, was on appeal to the Supreme Court of the State of Missouri. Accordingly, both Defendant Robert Madget and certain of the Plaintiffs were then contesting actual title to said lands in the courts of Missouri, which fact said Defendants then well knew; but, notwithstanding, Defendants abused the processes of law to assert a default completely within the control of Defendants so as to assert an alleged right to an inequitable forfeiture sale of said Chariton County lands, with regard to which no default whatsoever existed, to the exoneration of lands, the title to which said Robert Madget had then possibly procured as aforesaid; and

“b. Defendants thereafter, consistently with the above, intentionally continued to assert the aforesaid defaults and exoneration rights so as to continuously place Plaintiff Maurice E. Jenkins in a position where no assets would be available to him for possible satisfaction or compromise of said Chariton County Grain Company judgment, and likewise intentionally caused all assets of the Plaintiffs in Linn and Chariton Counties to be underneath the cloud of said assertions and their demands that Plaintiffs Maurice E. Jenkins and Hazel I. Jenkins were responsible for the total obligations under the note, notwithstanding ownership of four-fifths of said lands by Defendant Robert Madget and his assignees, to the result that Plaintiffs would not have any assets available for payment of their rightful obligations, or the demands of Defendants with respect to said lands, and a forfeiture thereof to Defendants would result.

“c. As a result of the foregoing, Plaintiffs were required to institute a Declaratory Judgment action to protect their interests from the Defendants’ asserted rights of sale under said Deeds of Trust, including injunctive relief to maintain the status quo pending determination of the Declaratory Judgment issues, the costs, expenses and attorneys’ fees regarding the same being damages to the Plaintiffs by reason of Defendants’ abusive use of the rightful processes of law.

“WHEREFORE, Defendants and their agents having wrongfully abused the process to which they were entitled, Plaintiffs pray for a judgment in amount of $5,000, for punitive damages in amount of $5,000,-000, and for their costs expended herein.”

The defendants’ motion asserted that none of the counts of the petition asserted a claim on which relief might be granted. The motion also asserted the bar of res adjudicata and estoppel by verdict or estop-pel by judgment, contending that all matters raised in the petition had been previously litigated to final conclusion. The motion also relied on the compulsory counterclaim rule, contending that the claims of plaintiffs arose out of the same transactions or occurrences as had given rise to prior litigation between the parties.

In this court, appellants assert that Count I of their petition states a cause of action based upon abuse of process and trespass and that Counts II and III state claims based upon abuse of process alone.

Their brief here appears to be the first time that appellants have asserted a reliance upon statement of a claim based upon trespass. In their memorandum in opposition to the motion to dismiss, overruled by Judge Green, plaintiffs stated: “As also set forth at argument of the motions, all three Counts in the current proceeding are for the tort of Abuse of Process * * At the oral argument before Judge Donelson, the judge stated to counsel for plaintiffs: “I notice, Mr. Brown, in the original suggestions that you made, that you were suggesting that these were based upon the tort of abuse of process.” Counsel replied: “Yes, Your Honor. All three counts are grounded on abuse of process.” In his oral argument, counsel stated: “We are involved in this particular case, Your Honor, with abuse of process in three counts; * * Plaintiffs’ supplemental suggestions in opposition to the motion to dismiss heard by Judge Donelson continue to advance the theory of abuse of process. At no point was it ever suggested to the trial court that any claim was based upon a different theory. All of appellants’ citations in this court in support of their contention that a claim for relief was stated are cases of abuse of process. In these circumstances, review in this court will be directed to this theory of the claim for relief on all three counts. Southwestern Bell Telephone Company v. Webb, 393 S.W.2d 117, 120 (Mo.App.1965); Shelton v. M & A Electric Power Cooperative, 451 S.W.2d 375, 380[7, 8] (Mo.App.1970).

On this appeal, both appellants and respondents rely upon the cases of Moffett v. Commerce Trust Company, 283 S.W.2d 591 (Mo.1955), and National Motor Club of Missouri, Inc., v. Noe, 475 S.W.2d 16 (Mo.1972), for statements of the basic elements of a claim for damages for abuse of process. The statement from the National Motor Club case is sufficient for purpose of this appeal (475 S.W.2d 24):

“In 1 Am.Jur.2d Abuse of Process, § 1, p. 250, the definition is stated: ‘Abuse of legal process consists in the malicious misuse or misapplication of that process to accomplish some purpose not warranted or commanded by the writ. • In brief, it is the malicious perversion of a regularly issued civil or criminal process, for a purpose and to obtain a result not lawfully warranted or properly attainable thereby, and for which perversion an action will lie to recover the pecuniary loss sustained.’ At p. 252, § 4 of the same volume, the elements to sustain the action are said to be: ‘(1) that the defendant made an illegal, improper, perverted use of the process, a use neither warranted nor authorized by the process, and (2) that the defendant had an ulterior motive or purpose in exercising such illegal, perverted, or improper use of process, and (3) that damage resulted to the plaintiff from the irregularity. * * * Or stated another way, the test as to whether there is an abuse of process is whether the process has been used to accomplish some end which is without the regular purview of the process, or which compels the party against whom it is used to do some collateral thing which he could not legally and regularly be compelled to do.’ See Annotation 80 A.L.R. 582; and also 72 C.J.S. Process § 120, p. 1189; and White v. Scarritt, 341 Mo. 1004, 111 S.W.2d 18, where defendants used the threat of continuing a taxpayer’s suit to compel plaintiff and other landowners to pay defendants a fixed proportion of sales prices to get the suit dismissed before options for a courthouse site expired. In commenting on the White ease, the court iii Moffett v. Commerce Trust Company, Mo., 283 S.W.2d 591, 600, said, ‘Of course, the defendants had the right as taxpayers to bring such a suit but it acted wrongfully in using the suit for the purpose of extorting money from the property owners, which they did not owe and could not have legally been compelled to pay.’ ”

As for Count I, the petition alleges no illegal use of process or ulterior motive in exercising such illegal use of process. The judgment creditors had a right to process for the collection of their judgment. They had a right to levy execution upon the personal property of the judgment debtor. In their brief appellants assert that they alleged that “Respondents attempted an improper levy without bond.” There is no allegation in the petition of facts which would require a bond, there being no allegation that any property was seized under the execution. See Rule 76.22. Appellants also assert that the respondents’ willful acts “were for an ulterior motive or purpose of attempting to levy without regard to the ownership of the property upon which levy was being attempted.” According to the testimony of Mr. and Mrs. Jenkins at the hearing before the referee which resulted in the judgment, “the livestock on the farm and the machinery belonged to him alone except for a few hogs given to Mrs. Jenkins ‘three or four at a time,’ about 15 through the year.” Madget v. Jenkins, supra, at 770. There is no allegation of any actual levy on the property of another and as appears again from Madget v. Jenkins, supra, at 770, “ * * * an attempt to levy on personal property had been unsuccessful because Hazel Jenkins, the wife of Maurice E. Jenkins, then claimed joint ownership in all the personal property.”

In other words, insofar as Count I is concerned, the petition alleges only an attempt to employ process to levy on personal property of the judgment debtor without any allegation whatsoever of illegal coercion of the debtor or his wife or son, who are referred to in Count I. No cause of action for abuse of process was stated in Count I and the trial court correctly so concluded.

The reliance upon which Count II is based is vague so appellants’ brief will be employed to find just what the complaint found in that count is. It states:

“With respect to Count II, it is submitted the ‘regular’ processes of Respondents consisted of their conducting an execution sale upon their judgment and then filing and prosecuting a Quiet Title suit, the end result of which is rather fully set forth in Madget v. Jenkins, 461 S.W.2d 768 (Mo.1971). As observed by Judge Hyde’s opinion, although it might not be the gentlemanly way to go about collecting the judgment, it was nevertheless a legally proper process method to levy upon the land than destroy Appellants’ deeds with the following Quiet Title suit.

“However, concurrently with these ‘regular’ processes, Appellants allege Respondents continuously attempted to purchase a single Note securing both the property which was the subject matter of the execution sale and the Quiet Title suit and additional lands of Appellants (improper act not authorized by the ‘regular’ processes), with an ulterior motive or purpose of denying to Appellants the collateral of these other properties and coerce an unreasonable settlement of the ‘regular’ process prior to their conclusion. Not being able to consider satisfaction or compromise, Appellants were forced to forego these possibilities and run the litigation to its end as set forth, to their additional expense and without more economical satisfaction of the obligations of Appellants as would have been otherwise possible. Accordingly, the elements of: (1) willful acts not proper in the regular conduct of the processes, (2) ulterior purpose, and (3) damages; have been clearly shown, quite independently from those matters necessarily decided by Madget v. Jenkins, supra.

Unfortunately, the brief is little more enlightening than the petition, except that appellants have foregone any claim that the abuse of process consisted of bringing the quiet title suit until after the execution sale. In view of the holding of Madget v. Jenkins, supra, they could hardly do otherwise.

Thus it appears that the “abuse” complained of was that “Respondents continuously attempted to purchase a single note securing both the property which was the subject matter of the execution sale and the Quiet Title suit and additional lands of appellants * * However, there is no allegation that respondents had no right to attempt to purchase the note. Obviously they had the right to do so. Whether the note was owned by respondents or the insurance company, the Chariton County farm would have been equally available as “collateral.” Appellants state that the motive of respondents was to “coerce an unreasonable settlement of the ‘regular’ process prior to this conclusion.” No basis for this statement is to be found in the petition, but even if it were directly alleged, it would state no claim of abuse of process in view of the fact that the attempts to purchase the note, relied upon in Count II, were not, in any event, dependent upon the aid of legal process. Adverting to the petition, which appellants’ argument in their brief generally ignores, the claim there as to Count II seems to be that the execution sale and purchase by Madget of the farm for $500 and the subsequent quiet title suit were an abuse of process because they represented not a bona fide effort to collect the judgment but an effort to forfeit appellants’ rights in the Linn County land while preserving the most of their judgment. Understandably, this allegation is not relied upon here, in view, again, of the finding in Madget v. Jenkins, supra, that the $500 successful bid was the result of “chilling” of the sale by appellants’ attorney. 461 S.W.2d at 770, 775.

In short, Count II contains no allegation of illegal use of process for an ulterior purpose and stated no claim for relief.

Insofar as Count III is concerned, the abuse of process complained of appears to be the assertion by the holders of the note secured by a deed of trust on both the Linn and Chariton County lands of appellants of “a default completely within the control of defendants * * One of the findings of the Linn County Circuit Court in the case of Jenkins, et a 1. v. Andrews, et al. No. 2192, the case in which appellants sought, among other relief, injunction against foreclosure of the deed of trust on the Chariton County farm, was: “Plaintiffs were in default for failure to pay the 1967, 1968 and 1969 taxes, and for failure to pay any principal payments since the assignment of the note and the note holders were entitled to accelerate the entire debt and seek foreclosure.” Having been found in default in the action which they brought, there is no basis whatsoever for any claim that the assertion of such default was an abuse of process. It was nothing more than the holders of the note and deeds of trust were entitled to do.

The Linn County Circuit Court found against the appellants on all of their claims in the action to enjoin foreclosure of the deed of trust, including the claim of no default and the claim of right of exoneration, referred to in the petition here. The petition in this case simply asserts no basis for a claim of abuse of process in connection with the foreclosure proceedings.

As above noted, appellants have cited Moffett v. Commerce Trust Company and National Motor Club of Missouri, Inc., v. Noe, supra, in support of their contention that they have stated a cause of action for abuse of process. Neither of those cases is helpful to appellants. In Moffett, the petition was held not to state a cause of action for abuse of process. A large number of separate actions were relied upon but the court found that the proceedings were legitimate efforts to establish indebtedness to the estates represented by the defendant and obtain judgment therefor, with no allegation that plaintiff was compelled to do something apart from the judgment that could properly be obtained. 283 S.W.2d 600.

National Motor Club involved a counterclaim which charged a classic abuse of process, i. e., that plaintiff had brought multiple suits against defendant for numerous illegal purposes other than the collection of damages.

Appellants have also cited Flynn v. Songer, 399 S.W.2d 491 (Ky.1966). In that ease plaintiff had caused a garnishment to issue to defendant’s employer in connection with a claimed indebtedness of defendant to plaintiff’s corporate employer. Defendant obtained a warrant for plaintiff’s arrest for illegal practice of law for the avowed purpose of using such procedure to compel withdrawal of the garnishment, an unwarranted use of the criminal process.

None of these cases is helpful to appellants in the slightest degree. They have failed to state a claim for relief. The trial court properly sustained respondents’ motion on such grounds and no consideration need be given to other grounds asserted in support of the trial court’s judgment.

Judgment affirmed.

All concur.


source: Caselaw Access Project

license: Public Domain

text:
    William T. WELCH et al., Appellants, v. CITY OF BLUE SPRINGS, Missouri, et al., Respondents.
    No. 27,245.
    Missouri Court of Appeals, Kansas City District.
    Aug. 4, 1975.

      Jimmie D. James, James & Eisfelder, Independence, for appellants.
    William W. Ely, Blue Springs, for City of Blue Springs.
    Stanley P. Christoner III, County Counselor and James C. Morris, Deputy Co. Counselor, Kansas City, for County of Jackson.
    Julius M. Oswald, Blue Springs, for Board of Education.
    John J. Campbell, Independence, for George T. Ward, Builders, Inc.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Appeal from order dismissing petition in action to enjoin the use of a roadway, or in the alternative to set aside the platting of a subdivision.

A preliminary question, raised by motions to dismiss the appeal, is whether or not the order appealed from is an appealable order. The order involved was entered in the circuit court on February 7, 1974. The court held that plaintiffs’ second amended petition states no facts upon which equitable relief might be granted and sustained the separate motions of the various defendants to dismiss the second amended petition. The order further stated: “This dismissal is without prejudice and should plaintiffs desire to re-file their claim by amending the petition in the instant case they are granted thirty (30) days from the date hereof within which to amend their second amended petition.”

The next record entry is plaintiffs’ notice of appeal, filed March 6, 1974.

Motions have been filed by respondents, contending that the order dismissing the petition without prejudice is not a final judgment from which an appeal will lie. Respondents rely upon Bailey v. Williams, 326 S.W.2d 115 (Mo.1959), in which the court stated that when a petition is dismissed with leave to amend, no final judgment is entered. In that case, the problem arose when the respondents, on an appeal from an order sustaining a motion to dismiss a petition and dismissing the suit, contended that a prior order sustaining a motion to dismiss, with leave to amend, was an appealable order from which an- appeal should have been taken. The appeal was from the dismissal of the subsequently filed amended petition. The situation here differs from that involved in Bailey v. Williams in that no further amended petition was filed after the motion to dismiss was sustained, without prejudice.

In Hunt v. Dallmeyer, 517 S.W.2d 720 (Mo.App.1974), the question presented to the St. Louis District of the Court of Appeals was the timeliness of a notice of appeal from an order sustaining a motion to dismiss, with leave gfanted plaintiff to amend his petition. As in this case, plaintiff did not file an amended petition, but appealed from the order. The court, in effect, concluded that the order of dismissal became a final judgment upon expiration of the time granted to file an amended petition, with no such filing having been made. No mention was made by the court of Rule 67.06, Y.A.M.R., which requires a motion for the entry of final judgment in such circumstances.

Although the matter is not free from doubt, it does appear that, under Rule 67.06, the entry of judgment upon motion would be a ministerial act. By filing notice of appeal, plantiffs in effect acknowledge the final nature of the dismissal. Therefore the order here appealed from is considered final for purpose of appeal. Respondents’ motion to dismiss the appeal will be overruled.

The second amended petition was filed on behalf of approximately fifty persons named as parties plaintiffs, the owners of lots in Willow Brook subdivision, located partly in the City of Blue Springs and wholly within Jackson County, Missouri. It alleged that the defendant George T. Ward Builders, Inc., on March 17, 1972, filed a preliminary plat of Willow Brook, Lots 1 through 110, with the Jackson County Planning Commission. According to such preliminary plat, the streets within the subdivision would be cul-de-sacs used for local traffic by residents of the area, and, particularly Willow Brook Drive would not constitute a through roadway.

The preliminary plat was approved April 19,1972. On May 29,1972, defendant Ward filed a plat of Lots 1 through 49 of the subdivision with the Jackson County Planning Commission, which approved the plat.

On July 16, 1973, defendant Ward filed the plat of Lots 50 through 108 of the subdivision with the Jackson County Planning Commission. In such plat, the location and contour of Willow Brook Drive was altered from the “original plat.”

The petition alleged that such change was brought about as follows:

“ * * * in the spring of 1972 the School Board requested the Blue Springs City Council to require a change in the final section of the plat of Willow Brook so that the School Board and more specifically the school facilities would be afforded additional ingress and egress to the school property through the Willow Brook subdivision; that thereafter the Blue Springs City Council requested the developer Ward to make said changes; that developer Ward resisted the changes and proposed alternative routes of providing ingress and egress to the school property, said alternative route being supported by the County Planning Commission; that the City rejected the alternative routes and demanded developer Ward make the changes as indicated before the final plat of Willow Brook would be approved, although the final plat conformed with all provisions of Revised Statute of Missouri 445.010; that thereafter developer Ward made said changes and filed the final plat as indicated above.”

The petition further alleges:

“That twenty of the enumerated plaintiffs contracted for or completed purchase of their enumerated lots in the first section of Willow Brook which includes Lots 1 through 49 between the time of April 20, 1972 and July 16, 1973; that on or before the date plaintiffs purchased their said lots the only information as to the final form of said subdivision was contained in the preliminary plat of Willow Brook and the final plat of Lots 1 through 50 of said subdivision; that all said contracts and deeds referred only to ‘Willow Brook, a subdivision in Jackson County, Missouri’ and no reference was made to the two separate sections, Lots 1 through 49 and Lots 50 through 103; that further information was contained in a sales brochure furnished by defendant, Pacesetter Homes Company, a copy of which is attached to plaintiffs’ original petition and marked as plaintiffs’ Exhibit ‘D’ and incorporated herein by reference as though more fully set out herein at length; that upon purchase of said lots, plaintiffs acquired a property right, to-wit: that Willow Brook subdivision would be a closed subdivision of cul de sacs used for local traffic by the residents of said area and assuring in a limited manner a degree of privacy not afforded by the traffic pattern as changed in that Willow Brook Drive would connect with R. D. Mize Road on the eastern side of said subdivision and would proceed in a westerly direction to connect with 19th Street, then proceeding in a northerly direction to connect with R. D. Mize Road on the northern side of said subdivision and further that Willow Brook Drive would not constitute a through roadway; that said plaintiffs were informed, believed, and upon such belief allege the fact to be that said ‘closed subdivision’ would at the present and in the future enhance the property value of their homes, increase and secure the plaintiffs’ peace of mind and quiet enjoyment of their homes; that plaintiffs had a right to rely upon and did rely upon the information then available, furnished and supported and reinforced by all the defendants.”

The petition charged that the action of the City of Blue Springs was an “unreasonable exercise of municipal authority when only ministerial approval of the final plat was required.”

It charges that the school district’s acquisition of the additional ingress to and egress from the school property “constituted an improper exercise of its right of eminent domain.”

On this appeal, appellants’ reliance is upon two propositions, stated in their brief as follows:

1. “Plaintiffs had a right to rely upon the representations as to the location and contour of the roadways within the subdivision.”

2. “Defendants are estopped to deny the existence of the streets as set forth in the preliminary plats and maps exhibited to plaintiffs.”

They make other general contentions, such as the benefit of liberal construction of their petition, the absence of adequate legal remedy and the power of the court to provide the remedy requested, but these matters are necessarily incidental to the primary question of whether or not they have stated a claim for relief.

In support of their motions to dismiss in the trial court and in their briefs here, defendants have relied upon § 445.030, V.A. M.S. dealing with plats of cities, towns and villages or any addition thereto. The statute provides:

“Such map or plat shall be acknowledged by the proprietor before some official authorized by law to take acknowledgments of conveyances of real estate, and recorded in the office of the recorder of deeds of the county in which the land platted is situated; provided, however, that if such map or plat be of land situated within the corporate limits of any incorporated city, town or village, it shall not be placed of record until it shall have been submitted to and approved by the common council of such city, town or village, by ordinance, duly passed and approved by the mayor, and such approval endorsed upon such map or plat under the hand of the clerk and the seal of such city, town or village; nor until all taxes' against the same shall have been paid; and before approving such plat, the common council may, in its discretion, require such changes or alterations thereon as may be found necessary to make such map or plat conform to any zoning or street development plan which may have been adopted or appear desirable, and to the requirements of the duly enacted ordinances of such city, town or village, appertaining to the laying out and platting of subdivisions of land within their corporate limits.”

None of the cases relied upon by appellants in support of their contention dealt with the effect of a statute such as this. Their cases instead dealt with the rights of purchasers of lots in and to the streets as they appeared on a plat insofar as such plats fixed the width of such streets and their location relative to the boundaries of the lots. Such were the questions presented in Nicholas v. Title and Trust Co., 79 Ore. 226, 154 P. 391 (1916); Finlaw v. Hunter, 87 Ohio App. 543, 96 N.E.2d 319 (1949), and Raines v. Village of Alden, 252 Minn. 530, 90 N.W.2d 906 (1958). The case of Poudler v. City of Minneapolis, 103 Minn. 479, 115 N.W. 274 (1908), dealt with the right of lot owners in a part as shown in a plat.

These are the only authorities relied upon by appellants and none states any principle which supports their cause of action.

Section 445.030, supra, authorizes the action which the City of Blue Springs took in this case in requiring alteration of the plat as a condition for its approval. See City of Bellefontaine Neighbors v. J. J. Kelley R. & P. Co., 460 S.W.2d 298, 303[4, 5] (Mo.App.1970). Appellants contend that the city and county are estopped as “grantees of defendant Ward upon the dedication of the roadways by the preliminary plat.” No dedication of the roadways occurred upon the mere drawing of the preliminary plat. Regardless of what obligations might have arisen between the developer and lot owners by reason of the use of such plat, insofar as the city was concerned, there was no dedication of the roadways until the plat had been approved and filed for record. § 445.070, subd. 2., RSMo 1969. No facts whatsoever are alleged which would give rise to an estoppel of the municipal authority by reason of the dealings between the developer and the lot owners. By appellants’ theory, the illegal use of a preliminary plat (§ 445.070, subd. 1.) would nullify the specific authority granted the municipality to approve the plat.

' Given the authority of the City of Blue Springs to require the change in the plat, plaintiffs have no legal cause for complaint based upon the effect which the change might have upon vehicular traffic in the subdivision. Kansas City v. Berkshire Lumber Company, 393 S.W.2d 470 (Mo.1965).

Appellants’ petition stated no claim for the relief requested, i. e., injunction against use of the roadway or the setting aside of the filed plat and the filing in lieu thereof of the originally proposed plat for Lots 50 through 103.

Judgment affirmed.

All concur.


author: PRITCHARD, Chief Judge.

text:
    STATE of Missouri ex rel. Werner VON PEIN and Adrianna Von Pein, Relators, v. The Honorable Donald B. CLARK, Judge of the Sixteenth Judicial Circuit of Jackson County, Missouri, at Kansas City, Division Seven, Respondent.
    No. KCD 27249.
    Missouri Court of Appeals, Kansas City District.
    Aug. 4, 1975.

      Bradley McTavish, Kansas City, for rela-tors.
    Royce J. Estes, Kansas City, for respondent; Linde, Thomson, Fairchild, Langwor-thy & Kohn, Kansas City, of counsel.
    Before PRITCHARD, C. J., and SHAN-GLER, DIXON, SWOFFORD, WASSER-STROM, SOMERVILLE and TURNAGE, JJ.
   PRITCHARD, Chief Judge.

The question is whether respondent Circuit Judge exceeded his jurisdiction in entering an order that relators, now residents of Belgium, appear for the taking of their depositions “at the offices of Linde, Thomson, Fairchild and Langworthy, Floor 3, Columbia Union National Bank Building, 900 Walnut, Kansas City, Jackson County, Missouri, at a time and on a date not less than 10 nor more than 15 days prior to the date on which this case may hereafter be specially set for trial, the time and date to be selected by counsel for plaintiff and notice thereof shall be given defendants not less than 30 days prior to the date so selected.”

The underlying action in which relators’ deposition are sought is for damages allegedly occasioned by a dog bite of “one Doberman pinscher” and that “the defendants wrongfully kept said dog in that said defendants knew or should have known that said dog was of a ferocious and vicious disposition, and likely to and accustomed to attack and bite mankind,” and that the dog was permitted to go at large without being properly guarded, restrained or confined. Certain ordinances of the City of Kansas City (§§ 6.50, 6.52 and 6.54), relating to the keeping, confining, permitting on public streets of dogs of cross, dangerous or ferocious disposition; prohibiting those dogs which habitually jump upon or threaten persons on the public streets; and prohibiting dogs from running at large without leashes. Under Count I of the first amended petition damages were prayed for in the amount of $25,000.00, and under Count II, under an allegation that relators’ acts “were intentional and reckless so as to be in utter disregard of the safety and consequences to others,” an additional judgment for $25,000.00 as punitive damages was demanded by plaintiff (Martha Belle Smith).

Relators were served with a summons and a copy of the petition for damages on July 11, 1973. An answer was filed, and on August 14, 1973, relators were served with plaintiff’s interrogatories, 51 in number. Separate answers (noted below) were filed by relators to the interrogatories. On September 17, 1973, relators’ attorney was served with notice to take their depositions in Jackson County, Missouri, on December 5, 1973. By letter on October 11, 1973, relators’ attorney notified plaintiff’s attorney that relators then resided in Brussels, Belgium, and “Accordingly, I will not be able to have them present on December 5, 1973, for you to take their deposition. Considering their present location, the expense of a special trip for this purpose would be prohibitive.” On October 17,1973, plaintiff filed a motion for a default judgment against relators based upon their wilful failure to appear before the officer who was to take their depositions. Relators filed a motion for a protective order that plaintiff’s notice to take depositions be quashed; plaintiff’s motion for judgment by default be denied; and that plaintiff be directed to proceed with her discovery so as not to violate the intent of Rule 57.01, wherein it provides that the court may make any other order which justice requires to protect the party or witness from undue expense of oppression. Both motions were finally overruled, but the court entered the above order which is the basis of relators’ petition for a writ of prohibition. The preliminary rule in prohibition issued and the matter has been fully briefed, argued and submitted to .this court.

There was some equivocation in oral argument by counsel for relators with respect to whether they would in fact be in attendance personally at the trial. It was stated by counsel that in the trial court’s order it was presumed that there would be attendance by relators at the trial; that it has never been indicated whether or not they would attend trial, “and that is not particularly relevant”; that if relators were ordered to appear, “It then becomes my burden and my responsibility to produce those people for deposition in compliance with the court’s order”; and “If [relators] appear by counsel a defense could be presented on their behalf by me.” “A party to a civil action who is not in default, is entitled to be present in the courtroom, and to be represented by counsel at all stages during the actual trial of the action. This does not mean, however, that it is essential to the jurisdiction of the court that the parties be present at all times during the trial, but simply that this right cannot be denied them. They must be given the opportunity to be present, but if that opportunity is given, their absence during the trial 'does not affect the right to proceed.” 75 Am. Jur.2d Trial, § 51, p. 164. The trial court’s order here does specify that 30 days notice to relators be given to relators of the date of trial as selected for trial. It does, however, assume that relators will be present at the trial, and orders them to appear for their depositions within 10 to 15 days of the date of trial for the taking of their depositions. Under all of the circumstances here, the order is too broad.

Without question, the right of a party to depose witnesses and as such adverse parties is an absolute one. Norkunas v. Norkunas, 480 S.W.2d 92, 94[7][8] (Mo.App.1972), and eases cited. Norkunas involved the quashing of defendant’s subpoenas, held to limit substantially the range of his defense. But the “absolute right” to take depositions imist be , equitably measured with the adverse consequences and hardships upon the party sought to be deposed as the facts may show. Here the fact of relators’ far distant residence from the place where they were ordered to appear for the taking of their depositions is a most significant one. Although, as the trial court observed, relators cannot subvert the right of plaintiff, Smith, to take their depositions, by the removal of their residence from the place where personal service was obtained upon them, the plaintiff must abide by the provisions for discovery available to her which would obviate undue hardships upon relators.

One of the provisions for discovery is the use of written interrogatories under Rule 57.01, V.A.M.R., here actually used by plaintiff Smith. It cannot be known exactly in which posture facts, under appropriate instructions, may be submitted to the trier of the fact, yet it appears that plaintiff has elicited information bearing on the submis-sibility of her case of liability in this dog bite action by reason of relators’ admissions in answers to propounded interrogatories concerning their knowledge of the vicious or dangerous propensity of their Doberman pinscher: To interrogatory No. 36, “To the best of your knowledge and belief, has the dog referred to in Interrogatory No. 21 ever bitten anyone prior to June 21, 1973?” Relator Mr. Von Pein answered: “Yes. I was told by my wife that she had nipped the mailman”, and that his wife said there was a police report made with respect to the biting. To interrogatory No. 40, “To the best of your knowledge and belief, has the dog referred to in interrogatory No. 21 ever growled, snarled, snapped or in any manner displayed anger toward any person prior to June 21, 1973?” Mr. Von Pein answered, “No. The dog does not snarl or growl. There are several people who can attest to the docile nature - of the dog. The only situation under which she might nip is if she were startled.” In answers to interrogatories 36 and 37, relator, Mrs. Von Pein, stated the dog had nipped the mailman in the Spring of 1973, that she saw it, that there were no [other] witnesses to the biting, that the dog “was startled near me and mailman approached me”, that she did not recall the name of the police officer who investigated the biting, and “Bite was very minor and only barely broke the skin.”

If plaintiff Smith is dissatisfied with the status of her case concerning its submissibility within eases such as Boosman v. Moudy, 488 S.W.2d 917, 920[1, 2] (Mo.App.1972); Maxwell v. Fraze, 344 S.W.2d 262, 264[2] (Mo.App.1961); and Dansker v. Gelb, 352 S.W.2d 12, 16[5] (Mo.1961), she may have further discovery under Rule 57.04 (Deposition upon written questions), and Rule 57.05(c) (Deposition pursuant to a letter rogatory), and further interrogatories. This procedure should obviate the expenditure of time and expense either for plaintiff Smith to travel to Belgium to take relators oral depositions, or for relators to travel to Kansas City, Missouri, to submit to depositions.

There are several cases which have given protection to persons sought to be deposed where there existed undue expense, hardship, and oppression in requiring them to travel long distances for a personal appearance before an officer empowered to take their oral depositions. See Perry v. Edwards, 16 F.R.D. 131 (D.C.W.D.Mo.1954); Stevens v. Minder Construction Corporation, 3 F.R.D. 498 (D.C.S.D.N.Y.1943); Gitto v. “Italia,” Societa’ Anonima, Etc., 28 F.Supp. 309 (D.C.E.D.N.Y.1939); Clair v. Philadelphia Storage Battery Co., 27 F.Supp. 777 (D.C.E.D.Pa.1939); Butts v. Southern Pacific Co., 7 F.R.D. 194 (D.C.S.D. N.Y.1947); Layton v. Lee, 196 A.2d 578 (Del.Sup.1963); Kaufman v. Kaufman, 63 So.2d 196 (Fla. banc 1953); and Bolognino v. Anheuser-Busch, Inc., 279 App.Div. 819, 109 N.Y.S.2d 111 (Sup.Ct.1952). These cases speak of the alternative procedures for discovery such as are encompassed in Rule 57, supra.

Under the facts of this case, showing undue hardship upon relators to travel from Belgium to Kansas City, Missouri, to give their depositions, the trial court abused its discretion in entering its order in the manner done. For that reason the preliminary rule in prohibition is made absolute. However, if relators do in fact plan to be present in person at the trial, the trial court may require them to arrive in Kansas City a sufficient time in advance of the date the case is set for trial to allow for the taking of their oral depositions if plaintiff Smith so desires. Upon their failure to so appear, the trial court may impose such sanctions as may be appropriate under Rule 61.01(f) and (d).

All concur.


author: SHANGLER, Judge.

text:
    STATE of Missouri, Respondent, v. John L. BUCKNER, Appellant.
    No. KCD 27415.
    Missouri Court of Appeals, Kansas City District.
    Aug. 4, 1975.

      Willard B. Buch, Public Defender, Sixteenth Judicial Circuit, Robert A. Simons, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Clarence Thomas, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   SHANGLER, Judge.

The defendant was convicted for the armed robbery of taxicab driver Hatch and was sentenced to a term of imprisonment for five years in accordance with the verdict of the jury.

The conviction was returned on the evidence of witness Hatch that, as he stopped his Yellow Cab to discharge a fare, a young man [whom he identified as the appellant] engaged the conveyance and took a seat beside the driver. Immediately, two other men jumped into the backseat and directed Hatch to an address. As Hatch came to a stop at the designated destination, all three men announced it was a hold-up and loudly demanded his money. Hatch observed a gun held by one of the men in the backseat, and relinquished about $65 to them. He was commanded to go on, and pulled away leaving the trio standing on the sidewalk.

Hatch reported the incident to the police who initiated a search in which Hatch joined. The appellant was found standing on the sidewalk near the site of the robbery. He was taken into custody and while he and Hatch were alone momentarily in the police car, so Hatch related at the trial, the appellant offered: “If you don’t testify against me I’ll pay you anything you want”. Upon cross-examination, Hatch disclosed that he had given a signed written statement to the police, but could not recall whether he had mentioned the offer attributed to the appellant at the trial.

The appellant Buckner took the stand and testified that he took no part in the robbery and that the other two, who were only casual acquaintances, got into the cab without previous intimation; that he was unarmed and all the incidents of the robbery were perpetrated by the other two, from whom he fled in fear afterwards. The only words he spoke to Hatch while together in the police car were: “Man, it wasn’t me that robbed you, I don’t know who robbed you.”

In advance of trial the appellant by motion formally requested, and the court granted, discovery of

Any written or recorded statements or the substance of any oral statements of all persons whom the prosecuting attorney intends to call as witnesses at the trial.

In response, the State produced a copy of an unsigned statement of the witness Hatch, marked at the trial by appellant as his Exhibit 1. On cross-examination, counsel for appellant confronted witness Hatch with Exhibit 1, with the purpose of eliciting his acknowledgment that the statement was what it purported to be, a narrative to the police of the events leading to the charge, and to show that the statement made no mention of the offer attributed to the appellant by Hatch. After numerous objections by the prosecution, more jobation than orderly response, the court refused the exhibit as not the best evidence for the purpose intended since it was neither signed by the witness nor in his hand.

Counsel for the appellant resumed cross-examination of witness Hatch:

Q. Did you give a signed written statement to the police. on that date or shortly thereafter?
A. Yes.
Q. And do you now recall whether or not you included mention of this conversation in that report?
A. I can’t recall.

Thereupon, Mr. Simons, counsel for appellant, and Mr. Edwards, the prosecutor, approached the bench for the following proceedings. [Our emphasis throughout]:

MR. SIMONS: Your Honor, at this time I’m going to move the Court fór a mistrial based on the fact that if a signed and written statement does exist in the hands of the police as the witness has just testified that I was entitled to receive a copy of that statement under the discovery rules that have been enforced consistently in this jurisdiction during the past months in response to my discovery motion which was filed with the Court and which is part of the record of this case. I have received only this copy that Mr. Edwards has provided to me which is, as the Court has previously noted, unsigned and I was aware of no other report, signed or otherwise.
MR. EDWARDS: You received exactly what the discovery calls for, the substance of anything that was applicable to the case. I have provided you with copies of everything in our file. If you saw a report was not signed it is certainly up to you to find out if you wanted to use it or not use it and investigate your own evidence. It is not up to me. I provided you with the entire file including the copy you have just presented to the Court.
MR. SIMONS: Your Honor, I would like the record to reflect that I am not in any way or respect questioning Mr. Edwards’ good faith in giving me what was in his file.
I would like to point out that the request was made for written statements of witnesses if they existed.
MR. EDWARDS: It doesn’t say signed statements of anyone.
THE COURT: This is what the motion for discovery called for, any written or recorded statements or the substance of any oral statements of all persons the prosecuting attorney intends to call as witnesses at defendant’s trial.
MR. EDWARDS: Which they have received.
MR. SIMONS: I would contend to the Court that the statement of this man as referred to is just such a statement and that I have not received it. All I have received is the one that I attempted to use in Court today.
MR. EDWARDS: Apparently you don’t understand the English language or you didn’t listen to the Judge. It doesn’t say anything about the signed statement. It' gives the context or content of the statement. You have had both in this trial. THE COURT: The written statement would mean a signed statement, either hand written by him or typed by somebody else and signed by him or hand written by somebody else and signed by him.
MR. EDWARDS: It does not say signed, Your Honor.
THE COURT: That doesn’t make any difference. It said written or signed statement and I think that a written statement means one that is signed by him or one which is not signed by him but written by him because in the same sentence or the substance of any oral statement. (sic)
Now if this was an oral statement that somebody took down that’s one thing and that is differentiated from the written statement.

[This colloquy on the mistrial motion of the appellant for failure of the State to make discovery of the signed statement described by witness Hatch- was then distracted by a comment of the prosecutor on the inadmissibility as evidence of Exhibit 1, the unsigned statement of Hatch, a ruling already made by the court and accepted by the appellant.]

MR. EDWARDS: In any event, your Honor, that doesn’t relieve the defendant of the burden of best evidence.
THE COURT: I think that’s true. It doesn’t relieve him of the burden of the best evidence.

[The colloquy resumed with counsel for appellant probing the existence of, and reasserting his right to discover, a separate, signed statement by Hatch and the prosecutor and the court reconsidering the possible admissibility of the unsigned statement as evidence for purposes of impeachment.]

MR. SIMONS: From what I can determine from this witness’ testimony there is another statement other than the one I have been given.
MR. EDWARDS: I don’t determine that at all.
THE COURT: I suppose that you could hand this to him and ask him if he can tell whether or not from looking at it whether this is an exact copy of the statement that he gave to the police.
MR. EDWARDS: I think that is highly improper, your Honor.
THE COURT: I don’t think so.
MR. EDWARDS: There is no way a man can say some months earlier this is not a copy, an identical copy of anything unless his signature is affixed thereto and is identical and signed on that date. He can say, yes, this is without any way to determine it actually is an exact copy but it still would not be admissible for the purposes as the defense attorney used it for. He has asked did he report it. That’s all related.
MR. SIMONS: Your Honor, the motion I have made now is broader in its application and what Mr. Edwards is addressing himself—
MR. EDWARDS: You motion is so asinine. I directed it to your burden. It is not mine. You have the entire existence of this file.
MR. SIMONS: May I finish my statement?
MR. EDWARDS: Yes, you may.
MR. SIMONS: I am not questioning -the existence of anything I have no idea whether there is another written statement except for the fact that this witness has testified here that he did make a written and signed statement to the police and what Mr. Edwards provided me with a written and unsigned statement (sic). I must presume at this point that we are referring to two different statements and that I was, under my discovery motion filed with this Court under the rules of discovery, entitled to that other statement.
I think the proposition is when a specific request for a defined item is set out and that that request isn’t complied with I must not take it at face value but search further and look for something that hasn’t been provided.
THE COURT: Discovery only tells you what you’ve got.
MR. SIMONS: I was not informed there was a written and signed statement. I was given a copy of an unsigned statement.
THE COURT: I think you can do just what I said. I compare this with a transcript from a prior trial where you hand the witness a transcript and open to a certain page and say, “did you make that statement?” Of course, you can only do that to impeach.
He hasn’t said anything inconsistent yet. You are trying to impeach him and he hasn’t made any inconsistent statements yet that he doesn’t recollect or said anything specific about it.
MR. SIMONS: In that case, your Honor, it is my intention to show through this statement that he did in fact say something.
THE COURT: You can do that by putting the officer that took it on.
MR. EDWARDS: That doesn’t make it a contradictory statement for impeachment purposes admissible, through a police officer. If the man says nothing, if he said “No, I didn’t say that”, he has now said, “Yes, I did”, you have a contradiction. If he says, “I don’t remember”, there is no ' contradiction there, that makes this impeachable evidence.
THE COURT: That’s right. There is nothing inconsistent.
MR. SIMONS: Would the Court, for the record, rule my motion?
THE COURT: I sustain the objection of the prosecutor. The motion for mistrial is overruled.

The contention of the appellant, which we sustain, is that the order of the court allowing the motion for discovery imposed upon the State .the duty to furnish him a copy of the written signed statement of the witness Hatch, and that the failure to make such discovery at the trial after the disclosure of the existence of such a statement, entitled the defendant to a new trial.

The response of the State, both at the trial and on this appeal, does not contradict the affirmation of the witness Hatch of a separate, written, signed statement, but seeks to evade production on the premise that the rules of criminal discovery do not require disclosure of a signed statement of a witness to be called for testimony, but only the substance of the statement. At the trial, the court properly ruled that written statement within the applicable rule of discovery [25.32(A)(1)] means “one that is signed by [the witness] or one which is not signed by [the witness] but written by him”. Notwithstanding, the prosecutor continued to resist discovery of the signed statement, and the court did not insist on compliance.

The State appears to argue, however, that since the appellant did not intend to use the signed statement as original evidence but merely to impeach the witness Hatch, the failure of the prosecutor to make disclosure could not have been prejudicial. We do not fathom how the uses of information as yet undisclosed can be predicted so confidently. This argument misconstrues the nature and purpose of Rules 25.80 through 25.45 as a code of criminal discovery. These rules promulgate a procedure, within constitutional definition, for mutual pre-trial disclosure between the parties in cases of felony. Their desideratum is a quest for truth which promotes informed pleas, expedited trials, a minimum of surprise and opportunity for effective cross-examination. American Bar Standards—Discovery and Procedure Before Trial, § 1.2; see, also, State v. Scott, 479 S.W.2d 438[1—3] (Mo. banc 1972); State v. Harrington (Mo.App., Springfield Dist., No. 9713, adopted June 9, 1975).

The obligation of the State for the disclosure of a written statement of a witness under Rule 25.32 must be read within this broad purpose of full and free discovery, which includes opportunity to the defendant to prepare in advance of trial for the cross-examination and impeachment of a witness by his own statement. There is no contention here that the written statement was not within the possession and control of the State, or that for some reason the State was not aware of its existence, but only an insistence that the requirements of the rule were met by the disclosure of the unsigned statement. In this, the State was in violation of both the rule and the order of the court.

On this appeal the State argues, as did the prosecutor at the trial, that in response to the order for discovery the defendant was accorded the entire prosecution file and that if the unsigned statement disclosed thereby intimated the existence of a signed statement by the witness Hatch, it was the initiative of the defendant to demand its production. This procedure would make of the present discovery rules only a parody of discovery. It would duplicate rather than simplify the obligations of counsel in the trial preparation and defeat the public need for the efficient and just disposition of felony causes.

The final contention of the State iterates that the appellant owed another initiative for the written statement of the witness Hatch before he could claim the right to demand a mistrial. We have already determined that Rule 25.32 requires no other initiative by a defense counsel for the written statement of a witness than a written request served upon the prosecutor for such information within the possession and control of the State. Although the trial court recognized that the State had violated the discovery order, the court was somehow distracted from requiring compliance or adopting one of the corrective alternatives allowed by Rule 25.45.

On this appeal, the question of a condign sanction remains. The only evidence to support the conviction was the testimony of witness Hatch. The trial theory of the prosecution was that the appellant, in concert with others, had perpetrated a robbery and that his offer to pay Hatch for his silence was an admission of that guilt. It was the testimony of the defendant, on the other hand, that he had engaged the taxicab without prior knowledge of the criminal design of the other two, and that his only conversation with Hatch was a disclaimer of participation in the robbery. Simple fairness required that the defendant be allowed to meet this central issue of credibility by a copy of the written statement for disclosure of any variance in the court testimony of the witness relating to the events, including whether the subsequent statement related the offer of compromise attributed to the defendant at the trial. In these circumstances, the failure of the State to comply with the order of discovery — and of the court to require it — deprived the defendant of a fair trial, a prejudice which can be redressed only by a new proceeding. Rule 25.45.

The judgment is reversed and remanded for a new trial.

All concur.

      . The trial was conducted prior to the effective date of Rules 25.30 through 25.45 but the Rules of Criminal Discovery were given effect to the proceedings by the accession of the State and the concurrence of the Court. The request posed by the defendant, and here cited, is the substance of the discovery allowed by Rule 25.32(A)(1).

      , Although the appellant initiated discovery of the statement of the witness by a formal discovery motion for that purpose, Rule 25.-32 contemplates that such be made by a written request by counsel for defendant upon the prosecutor. This procedure for out of court initiative is designed to conserve judicial resources for other work. See, American Bair Standards—Discovery and Procedure Before Trial, § 1.4.

      , Rule 25.45, which is a rescript of § 4.7 of the American Bar Standards—Discovery and Procedure Before Trial—provides: SANCTIONS
      If at any time during the course of the proceeding it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may order such party to make disclosure of material and information not previously disclosed, grant a continuance, exclude such evidence, or enter such other orders as it deems just under the circumstances. Willful violation by counsel of an applicable discovery rule or an order issued pursuant thereto may subject counsel to appropriate sanctions by the court.


text:
    STATE of Missouri, Respondent, v. Frederick THOMAS, Appellant.
    No. KCD 27518.
    Missouri Court of Appeals, Kansas City District.
    Aug. 4, 1975.

      Willard B. Bunch, Public Defender, Philip H. Schwarz, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Robert Sommers, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and TURNAGE, J.
   PRITCHARD, Chief Judge.

By the verdict of a jury appellant was convicted of kidnapping and his sentence was imposed, in accordance with the verdict, at four years imprisonment in the Department of Corrections.

The sufficiency of the evidence to sustain the charge is not questioned. It will suffice to say that appellant, on January 26, 1974, abducted Valerie Hughes at knife point at the Alameda Plaza Hotel parking lot, and forced her to accompany him to Harrison-ville, Missouri, about 40 miles from Kansas City, where she was let out of the ear.

Appellant makes three points. The first is that the court prejudicially erred in failing to give to the jury panel MAI — CR I.02, as mandatorily required by Rule 20.02, V.A.M.R. MAI — CR is lengthy and in general informs the jury as to the voir dire procedure in selecting a jury of 12 persons to try the case and concerns: the peremptory strikes of counsel; the asking of questions of the panel by counsel, and the necessity for truthful answers; the statement of the charge and defendant’s denial of its commission by him; a discretionary reading of MAI — CR 2.02, relating to the burden of proof; the introduction of counsel; and the duties of the twelve selected as the jury not to discuss the case until the trial is concluded, and to avoid all contacts with witnesses and the defendant. The notes on use .of this instruction require, “This instruction will not be numbered or given to the jury when it retires to deliberate.”

The transcript recites: “(A jury was duly examined, selected and sworn by the Deputy Circuit Clerk.)” It was appellant’s duty to incorporate the portions of the trial record relating to the examination and selection of the jury, so that this court would know whether there was a complete failure to give MAI-CR 1.02, or whether there was a material deviation in whatever was done in the examination and selection of the jury from the instruction. This is necessary for this court to determine the error, if any, and to judicially determine its prejudicial effect under Rule 20.02(e). There is no suggestion from appellant that whatever was done, or omitted to have been done, was prejudicial to his rights, or denied him a fair trial. Prejudice cannot exist in the vacuum of a mere alleged failure to give this instruction. Prejudice must arise from some act or misconduct in the trial which affected its outcome. A showing of any such matter is lacking and appellant’s first point is overruled.

Appellant’s second point is that the court erred in permitting the state to introduce evidence of the circumstances concerning his arrest, claiming that it was immaterial to any issue, irrelevant and was designed to prejudice the jury. The evidence was this: Two days after the kidnapping, two police officers, in plain clothes, had appellant’s residence at 3218 Linwood under surveillance. The officers “were looking for a party who was wanted in this city.” They saw that party at about 7:25 in the evening coming out of the front door of 3218 Linwood, down the main sidewalk from the building. He approached the street and headed eastbound on the sidewalk. The officers’ vehicle, which was parked in a vacant lot across the street, was started. Appellant (who was identified in court as the party) looked in the direction of the vehicle and as it started to move he ran northward. One of the officers yelled at appellant from the car window that he was a police officer and for him to stop, but appellant continued to run. The officer then pursued appellant on foot, and eventually he was caught hiding under a parked car in the driveway of 3224 Linwood which was the building next to the one in which appellant lived.

Although it may be that evidence of a mere arrest, without further evidence of surrounding circumstances from which inferences could legitimately be drawn, is immaterial and irrelevant to the charge of commission of a crime, here those further circumstances do exist, and were admissible. That evidence is that when the officers approached him appellant fled, and then concealed himself in an ostensible effort to avoid arrest. See State v. Simmons, 494 S.W.2d 302, 304 (Mo.1973), where defendant’s flight upon being discovered at a burglary scene was considered to be a link in the chain of circumstances showing guilt; State v. Woodard, 499 S.W.2d 553, 557 (Mo.App.1973), where defendant’s conduct in grabbing a woman as a shield from the arriving police, backing toward a door and then running was held entitled to jury evaluation; State v. Barry, 501 S.W.2d 515, 518 (Mo.App.1973), where evidence hypothesized in an instruction on avoidance of arrest and flight, although not establishing guilt, could be taken into consideration with all other facts and circumstances, was held not to be error. Here, the evidence is clear that upon being approached by the arresting officers he fled, and there concealed himself to avoid arrest. Under the foregoing authority, these circumstances were relevant and material, and could be evaluated by the jury in considering the issue of appellant’s guilt. The fact that the flight and concealment occurred two days after the kidnapping, goes merely to the weight of the evidence. State v. Dupree, 477 S.W.2d 129, 132[7] (Mo.1972); State v. Ball, 339 S.W.2d 783, 784[2] (Mo. banc 1960), where unexplained flight and resisting arrest even 30 days after the supposed commission of a crime was held to be a relevant circumstance. Point II is overruled.

The last point of appellant is that the trial court_ erred in failing to make a clear finding (upon appellant’s motion to suppress) that his oral admissions were voluntary, relying upon Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); State v. Glenn, 429 S.W.2d 225, 237[29] (Mo. banc 1968); and State v. Cluck, 451 S.W.2d 103, 106 (Mo.1970). Those cases and Sims v. Georgia, 385 U.S. 538, 544, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967), do hold that a hearing outside the hearing of the jury (which was here done) should be had, and that the court should make a finding that the confession (admission) was voluntary. Here, the court merely overruled the motion, and the evidence of appellant’s admission of the kidnapping was heard by the jury. There was no objection to the testimony of the admissions of appellant made to the police officer at trial. Cf. State v. Ealey, 519 S.W.2d 314, 320[5] (Mo.App.1975), and cases cited. Also, the motion for new trial of appellant does not attack the lack of any specific finding of voluntariness of his admission by the trial court. It merely adverts to the conflict in evidence (the officer’s testimony as to Miranda warnings being given, and appellant’s denial of being so warned), which was “such as to leave the Court in the reasonable exercise of its discretion, not clearly convinced that the statement made, if any, by the defendant was done voluntarily with full appreciation of the consequences.” Appellant’s Point III was not preserved for review either by objection made during trial (Ealey, supra), or by a sufficient incorporation in his motion for new trial. State v. Fields, 442 S.W.2d 30, 33 (Mo.1969). It is therefore overruled.

The judgment is affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Simon NERIA, Appellant.
    No. KCD 27149.
    Missouri Court of Appeals, Kansas City District.
    Aug. 4, 1975.
    Willard B. Bunch, Public Defender, Philip H. Schwarz, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special JJ.
   ROBERT R. WELBORN, Special Judge.

Charged with murder in the first degree, Simon Neria was found guilty of manslaughter by a jury in the Jackson County Circuit Court, which fixed the punishment at ten years’ imprisonment. This appeal is from the ensuing sentence and judgment.

A short time before midnight on July 3, 1973, Ray Cameron was killed by a blast from a 20 gauge shotgun discharged by Neria in Neria’s home in Kansas City. One question on this appeal is whether or not the trial court erred in failing to instruct on self-defense. Therefore, the evidence bearing on that question is of significance.

Gertha Mae Wyatt, who had lived with Neria for eight years, testified in the state’s case. She testified that Cameron lived in the neighborhood and had visited their residence on numerous occasions, sometimes in Neria’s absence. She said that Cameron had the reputation in the neighborhood of being a violent person and a killer and that he had “bullied” Neria on other occasions. On July 3, 1973, Cameron came to her residence, carrying a six-pack of beer. Neria arrived from work a short time later, at around 11:00 P.M. According to Ms. Wyatt, when Neria saw Cameron, he was not “gladly overly” and Neria told Cameron to leave. Cameron said he wasn’t going and Neria again asked him to leave. Cameron told him, “If you want me out, well, you put me out of your house.” Cameron got out of his chair and walked toward Neria with his right hand in his pocket. Neria stepped into a bedroom just off the living room, got a shotgun and when Cameron continued to walk toward him, Neria fired the gun, fatally woulding Cameron.

Ms. Wyatt called the police who arrived shortly. Ms. Wyatt told the investigating officers: “He wouldn’t leave and Simon shot him.” Neria said: “I asked him to leave and he wouldn’t; and then he started messing with my wife, and he said, ‘No; I ain’t going to get out of here.’ ”

Ms. Wyatt saw no weapon in either of Cameron’s hands. No weapon was found on his body. He did not strike Neria.

Neria testified in his own behalf. His version of the occurrence differed widely from that of Ms. Wyatt. According to Ne-ria, he had been home since around nine o’clock and Cameron had come into the house around that time. He had conversed with Cameron for some time and Cameron took offense when Neria indicated he wanted Cameron to leave. Neria testified:

“A. So I told him — I was trying to do— get him out or move him out or something, understand, that I got to go to sleep, I got to go somewhere. So I told him we might go to Swope Park or somewhere, Swope Park or somewhere. I might take this gun, you know what I mean; I might see a squirrel somewhere up there, or a rabbit or something; going out of the city limits. So he say, he turn around and say, ‘You better put that damn thing before I take it away from you and wrap it around your neck.’ So I kind of — I mean he kind of stand up like that (indicating), back in here, kind of back like this (indicating) and I hit the damn — the gun hit the damn divan like that and the damn thing went off and hit the man in the head; the bullet hit him in the head.”

The trial court instructed on murder in the first degree, second degree, and manslaughter. An instruction on excusable homicide was given, but the court refused to instruct on justifiable homicide. Such refusal is the basis for appellant’s claim of error.

The state- does not question the proposition that if the state’s evidence was sufficient to raise the issue of self-defense, the fact that the defendant’s own version of the occurrence was contrary to the state’s evidence does not avoid the duty of the trial court to instruct on self-defense. State v. Bidstrup, 237 Mo. 273, 140 S.W. 904, 907-908[4] (1911); State v. Boyd, 498 S.W.2d 532, 534[2, 3] (Mo.1973). Nor is the problem of inconsistent defenses here involved, inasmuch as the evidence of self-defense, if any, came from the state’s witness and the evidence of accident, on which the court instructed, from the defendant’s testimony. State v. Wright, 352 Mo. 66,175 S.W.2d 866, 872[8] (banc 1943); State v. Randolph, 496 S.W.2d 257, 262[5], [6] (Mo. banc 1973).

The state’s position is that there was insufficient evidence, when viewed in the light most favorable to the defense, to raise a jury issue as to whether the defense had been excluded beyond a reasonable doubt.

Appellant states the evidence which he claims raised the issue as follows:

“In the case at bar, there was evidence that Appellant acted in self-defense, which came from the lips of witness [Gertha Wyatt] called by the State in their case in chief. She stated that the victim challenged the Appellant to put him out of his house, that when the victim was shot, he was walking toward the Appellant with his hand in his pocket. That the victim had a reputation in the nieghborhood of being a killer, and that the Appellant did not get the gun until the victim told him that he was not going to leave and was walking toward the Appellant.”

Appellant has cited no case involving reasonably similar facts in which it has been held that such facts and circumstances give rise to an issue of self-defense. The state cites State v. Baker, 277 S.W.2d 627 (Mo.1955) as holding that a somewhat similar set of facts involving the testimony of the defendant that deceased who, upon being ordered by the defendant to leave at once, advanced toward the defendant with his hand in a hip pocket, did not require the giving of a self-defense instruction. However, the basic holding of Baker appears to be that the defendant, who also testified to an unintentional, accidental shooting, could not by his own testimony also create the necessity for a self-defense instruction. 277 S.W.2d 629 — 630[3-5]. The state also cites State v. Young, 510 S.W.2d 732 (Mo.App.1974) as in point. In that case the defendant relied upon threats of the deceased, his knowledge of the deceased’s reputation as a killer and the fact that when he turned around on a.public street, he saw the deceased following him and shot him although the defendant had made no threatening gestures or acts at the time. The court held that the mere fear on the part of the defendant was not sufficient to require a self-defense instruction in the absence of real or apparently real necessity. 510 S.W.2d 735. Here, there was evidence of some threatened action on the part of the deceased directed toward the defendant at the time of the occurrence.

The question here is whether or not, from the evidence, the jury might conclude that the appearances which confronted the defendant reasonably caused him to believe that Cameron was about to kill him or do him great bodily harm and that such danger was imminent and that the appellant believed that it was necessary for him to act as he did to protect himself from such danger. MAI-CR 2.40.

Because the appellant’s version of the affair is so different from that of the state’s witness, there is no direct evidence of appellant’s state of mind which would support the giving of an instruction on self-defense. In fact the only direct evidence on this subject from the appellant himself refutes any theory of action in self-defense, but appellant’s inconsistent testimony does not foreclose the duty to instruct on the question. State v. Bidstrup, supra, 140 S.W. 907[4].

The only circumstance tending to support a finding of appellant’s belief of an impending deadly assault was that the deceased advanced toward the appellant with his hand in his right pocket. No weapon was ever displayed. The deceased made no threat either to kill or injure appellant. There was no evidence that appellant was aware of the deceased’s claimed reputation as a “killer.” The evidence is unclear as to how far the deceased was from the appellant when the appellant fired. There was no evidence, however, that appellant sought to avoid his drastic act by warning the deceased. Inasmuch as he was in his own home, appellant was not under an obligation to retreat (see State v. Brookshire, 353 S.W.2d 681, 691 — 693[24], [25] (Mo.1962)). However, the question is one of self-defense, not defense' of habitation (State v. Brookshire, supra) and appellant was permitted to use deadly force only if the appearances justified a fear of deadly attack upon himself.

In the absence of evidence of a threat by the deceased against the appellant or of the display of some means of inflicting death or serious bodily injury on appellant, there was no appearance here, under the state’s evidence, which would reasonably justify defendant’s fears other than of a simple assault, at the most. The trial court was, therefore, not required to instruct on self-defense. State v. Parker, 403 S.W.2d 623, 627[4] (Mo.1966); State v. Jackson, 511 S.W.2d 771, 776-777[10] (Mo.1974). Appellant’s assignment of error on this ground is without merit.

Appellant’s second assignment of error is based upon the refusal of the trial court to permit Marcus Collins to testify as a witness for the defendant.

Before the noon recess on the second day of the trial, the first defense witness, Mr. Stanley Yukon, defendant’s employer, had testified to the defendant’s good reputation for truth and peaceful habits. When court reconvened following the noon recess, the court observed that Marcus Collins, whom defendant had proposed to call as his next witness, had been present during the morning proceedings in violation of the rule excluding witnesses which had been invoked at the request of the defendant. A hearing outside the presence of the jury confirmed that Collins had been in the courtroom. It also developed that defense counsel had been in touch with Collins by telephone sometime previously but had not interviewed him personally and was unaware of his presence until after the noon recess when Collins asked counsel if he could testify. Counsel stated that he expected to elicit testimony from the witness as to conduct of the decedent directed toward the defendant and as to the general reputation of defendant and the deceased. In the course of the interrogation, Collins stated that he used to live across the hall from appellant and Collins volunteered: “The boy used to bulldoze him; I know that to be a fact.”

The trial court concluded that the testimony of Collins would be “substantially cumulative.” The state’s objection to testimony of the witness was sustained. The trial court stated that it was “satisfied” that defense counsel “may not have been aware of Mr. Collins’ presence here in the courtroom. I’m not inferring that you were aware of it and permitted him to remain after you asked the rule to be enforced.”

Having found that the prospective witness had violated the rule without the connivance of the defense attorney, the trial court’s disqualification of the witness was, under the most recent pronouncement of the Supreme Court on this question in State v. Shay, 339 S.W.2d 799 (Mo.1960), erroneous. However, in view of the further conclusion that the testimony of the witness would have been cumulative, the error was harmless. State v. Nieuhaus, 217 Mo. 832, 117 S.W. 73, 80 (1909). In addition there was no clear offer of proof as to what the witness’s testimony might be. As above noted, the witness did volunteer that he knew that the victim “bulldozed” appellant. That is not evidence of prior acts of violence against appellant, such as might have been admissible in support of a claim of self-defense.

Under all of the circumstances, the ruling of the trial court was at the most harmless error, and affords no grounds for reversal of the judgment.

Judgment affirmed.

All concur.


author: FLANIGAN, Judge.

text:
    Donnie Ray SMITH, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 9668.
    Missouri Court of Appeals, Springfield District.
    Aug. 4, 1975.

      Michael Baker, Springfield, for movant-appellant.
    John C. Danforth, Atty. Gen., Charles B. Blackmar, Asst. Atty. Gen., Jefferson City, for respondent.
    Before STONE, P. J., and FLANIGAN and HOGAN, JJ.
   FLANIGAN, Judge.

Defendant appeals from a denial of his “Motion to Vacate Judgment and Set Aside Sentence under Rule 27.26.” On March 28, 1972, defendant, represented by counsel, entered a plea of guilty to a charge of molesting a minor, § 563.160 V.A.M.S., and was sentenced to a prison term of five years. Counsel was appointed to represent the defendant on the motion. The trial court held an evidentiary hearing in the presence of defendant and his attorney. The trial court made certain findings of fact and conclusions of law.

Although the motion contained several grounds for relief, only two of those grounds have been “carried forward” in defendant’s brief and they alone need be considered, the others having been abandoned. Herron v. State, 498 S.W.2d 530, 531[1] (Mo.1973).

The grounds preserved on this appeal are, in essence,

(a) Defendant was denied effective assistance of counsel, and

(b) Defendant’s plea of guilty was not voluntarily and intelligently made.

The facts relative to the alleged denial of effective assistance of counsel were fully developed at the evidentiary hearing. With respect to that ground, the trial court made findings of fact and conclusions of law as required by Rule 27.26(i). This court has reviewed the record and considered the authorities cited by the parties. The findings of fact of the trial court with respect to that ground were not clearly erroneous and no error of law appears. An opinion discussing the facts and law with respect to that ground would have no precedential value. Herron v. State, supra.

In compliance with Rule 84.16(b) this court affirms the findings of fact and conclusions of law of the trial court with respect to ground (a).

Defendant asserts, and the state concedes, that the trial court failed to make findings of fact and conclusions of law with respect to ground (b).

Rule 27.26(i) requires the trial court to make findings of fact and conclusions of law on all issues presented. The failure to make findings of fact and conclusions of law with respect to ground (b) requires reversal and remand. Forbes v. State, 511 S.W.2d 894 (Mo.App.1974); Hamilton v. State, 490 S.W.2d 363, 364[1] (Mo.App.1973).

The judgment is reversed and the cause is remanded with directions to the trial court to make findings of fact and conclusions of law on the sole issue of whether defendant’s plea of guilty was voluntarily and intelligently made; otherwise, the judgment is affirmed.

All concur.