author: WEIER, Presiding Judge.

text:
    Joseph A. HOOG and Shelley Hoog, Plaintiffs-Appellants, v. Stanley STRAUSS and Betty Strauss, Defendants-Respondents.
    No. 38516.
    Missouri Court of Appeals, St. Louis District, Division Three.
    April 18, 1978.
    Motion for Rehearing and/or Transfer Denied June 8, 1978.
    Application to Transfer Denied July 24, 1978.

      W. W. Sleater, Clayton, for plaintiffs-appellants.
    Michael W. Dunlop, St. Louis, for defendants-respondents.
   WEIER, Presiding Judge.

This is an appeal from a court-tried case in which the circuit court found against the plaintiffs on each of three counts, Count I being for malicious prosecution, Count II being for slander, and Count III being for false arrest. The facts underlying these counts occurred over a period of several years and apparently evolved from marital difficulties between plaintiff Joseph Hoog and his former wife, Carol Strauss Hoog, daughter of the defendants.

On January 14,1971, Carol Hoog had her father’s car parked in front of her husband’s brother’s house and Joseph Hoog’s car was parked directly in front of the Strauss car. As a result of a fight between husband and wife, the front end of the Strauss car was damaged, Joseph alleging his wife drove her father’s car into his car and Carol alleging her husband backed up into the car belonging to her father. After seeing the damages to his car and being told by his daughter what had happened, the defendant Stanley Strauss swore out a complaint against Joseph for malicious destruction of property. Joseph was convicted of this charge in municipal court and then appealed. While the appeal was still pending, the city prosecutor and Joseph and his attorney agreed that the case would be dismissed if Joseph paid the court costs. It is this case whose prosecution forms the basis of the malicious prosecution charge.

On March 15, 1974, the plaintiff Shelley Hoog, Joseph’s wife, was seen by a police officer sitting alone in a pickup truck late at night in front of the Strauss home. She told the officer she had just had an argument with her husband Joseph and had left him at home so she could be alone to think. Then the officer heard the sound of breaking glass and believing a burglary was in progress, he arrested Shelley Hoog. Just then Joseph ran from the defendants’ house toward the truck and was also arrested. The police woke up the defendants, told them what had happened and that the glass on one of their doors was broken, and asked if they wished to prosecute. The defendants said they did. In contrast to this, the plaintiffs presented evidence that Shelley Hoog had not yet been arrested and that when aroused by the police, the defendants demanded her arrest. All charges against Shelley were later dropped. This is the basis of the false arrest count.

Subsequently, various proceedings were held on some of the charges filed against Joseph in connection with this incident. He eventually pleaded guilty to charges of public drunkenness and destruction of private property and was given a suspended sentence. This occurred on January 23, 1975. Right after the trial Joseph and his attorney met with the defendants and the city prosecutor and he agreed to pay for the damaged glass door. The plaintiffs presented testimony from the prosecutor and themselves that after this agreement had been made the defendants publicly accused the plaintiff Joseph Hoog of having fire bombed their car. The defendants presented testimony from the police officer who had arrested the plaintiffs and who was present during and after the trial that he had heard nothing about fire bombing at all. They also testified on their own behalf that the defendant Stanley Strauss had merely said to Joseph’s attorney, “Will you please tell your client not to fire-bomb my car.” These remarks, whatever they consisted of, form the basis of the slander count.

The trial judge found against the plaintiffs on all three of their counts. He said they had not met their burden of proof on the malicious prosecution charge or the false arrest charge. As to the slander charge, he said it failed for lack of any proof as to damages. The plaintiffs contend as to the malicious prosecution and false arrest charges that the judge’s findings are not supported by the evidence. They contend that as to the slander charge, the judge’s findings are against the overwhelming weight of the evidence. They also contend that they did not need to prove damages because defendant’s remarks constituted slander per se. Finally, they assert that they were erroneously prevented from cross-examining the defendants’ witnesses as to matters affecting their credibility.

The standard of review in a court-tried case has been set out in numerous cases so it need not be reviewed in detail here. The standard is set out and discussed in Rule 73.01 and Murphy v. Carron, 536 S.W.2d 30, 32[1, 2] (Mo.banc 1976). Under it, we will examine the contentions that as to the malicious prosecution and false arrest charges, the trial court’s findings have no substantial evidence to support them.

Both of the defendants and the arresting police officer testified that defendants had not asked Shelley Hoog be arrested; that they merely said, upon being asked, they wished to prosecute the Hoogs for destroying their property. The police officer testified he had arrested Shelley Hoog when he heard the glass break, before the defendants had even been contacted by the police. Certainly this constitutes substantial supporting evidence of a finding that the defendants in no way caused the arrest of Shelley. She was already under arrest before they spoke to the police. It is the rule in this state there is no case of false arrest made out unless the plaintiff proves the defendant was the cause of the arrest. Wehrman v. Liberty Petroleum Company, 382 S.W.2d 56, 60[3] (Mo.App.1964). Plaintiffs here did not prove that the defendants caused Shelley’s arrest. The trial court’s judgment against the plaintiffs on Count III, the false arrest charge, was supported by substantial evidence.

With respect to the malicious prosecution charge, no case is made unless the plaintiff proves that the proceedings against the plaintiff, here the prosecution for destroying the defendants’ car, terminated in his favor and unless he shows lack of probable cause for such proceedings. Palermo v. Cottom, 525 S.W.2d 758, 763[5] (Mo.App.1975). We have failed to find any decision in this state holding the ending of a prosecution by a dismissal of the charges brought about by a compromise agreed to by the person being prosecuted, as happened here when Joseph Hoog agreed to pay court costs in return for a dismissal of the charges against him, on his appeal, constitutes a termination of the proceedings in the plaintiff’s favor for purposes of a malicious prosecution suit. Cf., Cooper v. Associated Laundries, 83 S.W.2d 591, 592-93 (Mo.App.1935). A conviction in a lower court, however, on the charge brought against a plaintiff in a malicious prosecution suit constitutes prima facie evidence of probable cause for the prosecution even though the case is dismissed after appeal to the circuit court. Plaintiff then has the burden of proving the conviction was based on false or fraudulent testimony by the defendants. La Chance v. National Pig meats & Chemical Co., 104 S.W.2d 693, 699[9] (Mo.App.1937).

Here, both the former Carol Hoog and the defendant Stanley Strauss testified that Carol had told her father Stanley that the plaintiff Joseph had backed his car into the defendants’ car. They also testified that she had told him that Joseph had twisted the ignition in the Strauss car and broken it. In addition, Carol testified that she had seen Joseph do this damage and Stanley testified he had himself seen the car, damaged just to the extent Carol had said it was, before he filed a complaint against Joseph. This is substantial evidence to support a finding that the defendant did not give false or fraudulent testimony against Joseph at the latter’s trial. Because this was necessary for the plaintiffs to prove and they did not do so, the judgment against them on Count I, the malicious prosecution charge, was supported by substantial evidence.

We turn now to the slander charge. We cannot agree that the trial court’s judgment on this count was against the overwhelming weight of the evidence. The plaintiffs testified that the defendant Stanley Strauss directly accused Joseph of fire bombing the Strauss car. The city prosecutor’s testimony corroborated theirs. The defendants, however, testified that no such accusation was made but rather Stanley had asked Joseph’s attorney to tell Joseph not to fire bomb the Strauss car. In addition, a police officer said he heard no remarks about fire bombing despite the plaintiffs’ claim that such remarks were carried over loudspeakers to the entire courtroom. We defer to the court’s finding because it is based on substantial evidence.

Assuming such a valid finding, the question then becomes: Does this remark constitute slander per se, eliminating the need for a showing of damages? Because the trial court found that there was no showing of damages (plaintiffs do not claim they made such a showing) and therefore the slander charge failed, it obviously held that Strauss’ remark, “Will you please tell your client not to fire-bomb my car,” was not slander per se. We agree. Accusation of a crime is slander per se and such an accusation need not be direct, but if it is not direct, it must be the only inference that could be reasonably drawn from the language used. Walker v. Kansas City Star Company, 406 S.W.2d 44, 50-51[1, 2] (Mo.1966); Priest v. Central States Fire Ins. Co., 223 Mo.App. 122, 9 S.W.2d 543, 544[7] (1928). Here, other inferences could be drawn besides that Joseph Hoog had fire bombed or threatened to fire bomb a car. For example, it could be inferred that Strauss thought Hoog was the kind of person who would fire bomb his car but this does not mean he actually ever committed the crime. The defendant’s statement, therefore, was not slanderous per se, and to support their slander charge the plaintiffs would have had to show damages, which they did not. We affirm the trial court’s finding against the plaintiffs on Count II.

Plaintiffs also contend the trial court erred in not allowing them to ask defendants’ witnesses several questions on cross-examination. In this category are several specific rulings about which plaintiffs complain. Most of these rulings concern questions which plaintiffs now claim they should have been allowed to ask because the answers would show bias or prejudice and affect the credibility of the witness. “Proof of a witness’s or party’s bias or prejudice in favor of or against any of the parties to an action may properly be shown and considered as bearing upon the credit which should be accorded the testimony of a witness . . . When bias or prejudice is being explored, broad discretion is vested in the trial court as to the extent of the cross examination.” Vosevich v. Doro, Ltd., 536 S.W.2d 752, 760[11, 12] (Mo.App.1976). See also, Thornton v. Vonallmon, 456 S.W.2d 795, 798[1—4] (Mo.App.1970).

Plaintiffs’ first contention of error under this point concerns two questions asked of Carol Stitt. On direct examination she testified only that she was the daughter of Stanley Strauss, that she was formerly married to Joseph Hoog, that Hoog had backed his car into her father’s car and had twisted and broken the ignition of her father’s car and that this is what she had told her father that Hoog had done. On cross-examination plaintiffs brought out that “at this particular time” Carol was still married to Joe. Then objections were sustained, apparently on the basis of irrelevancy, to the question, “And how long did you have difficulties with Joe?” and the question, “How long had you and Joe been separated?” When the trial court said it failed to see the relevancy of the questions, plaintiffs’ lawyer said “it shows that there was hard feelings between the two of them at the particular time and that it was not something that — an incident just of this particular minute” (emphasis added). From this statement and plaintiffs’ brief it is clear that plaintiffs were not claiming Carol was giving false testimony at trial but that she had lied to her father when she told him how his car had been damaged. Plaintiffs’ theory was that Carol, not plaintiff, was responsible for the damage to the car. Carol was not a defendant in the case and only her father was being sued under Count I for malicious prosecution arising out of this incident. Showing that Carol had hard feelings toward or bias against plaintiff would not be relevant where plaintiffs were not trying to show that her trial testimony with regard to what she had told her father was false. Her feelings toward plaintiff are irrelevant on this issue because even if she had lied to her father this would not show that he did not or could not have had a good faith belief that plaintiff had committed a criminal act. Probable cause, in a malicious prosecution case, depends not on the actual facts but on defendants’ honest and reasonable belief in the guilt of the accused. Dodson v. MFA Insurance Co., 509 S.W.2d 461, 467[1] (Mo.1974); 52 Am. Jur.2d, Malicious Prosecution § 72, pp. 232-33; 54 C.J.S. Malicious Prosecution § 20, p. 977. Attempting to show that the actual facts were other than defendant had been told they were is thus irrelevant. The trial court did not err in sustaining the objections to these questions.

Plaintiffs’ second subpoint in this category concerns the trial court’s action in sustaining an objection to a question asked of Carol as follows: “What was the purpose of coming to this location?” On appeal plaintiff asserts that this question was relevant “in determining what actually occurred.” As noted above, what actually occurred is not relevant.

In plaintiffs’ next subpoint they contend the trial court erred in sustaining an objection to this question asked of Carol: “At the time were you under a doctor’s care?” At trial plaintiffs did not attempt to show the relevancy of this question. On appeal they contend it was relevant “in determining what actually occurred.” Again, this is not relevant. Plaintiffs also argue that this inquiry was relevant in determining whether her father was entitled to rely on her statements. The reasonableness of his belief that plaintiff had committed a crime is relevant but this question does not go to the reasonableness of his belief. The court did not err in sustaining the objection to this question.

Plaintiffs’ fourth subpoint concerns the court’s action in sustaining an objection to this question asked of defendant Stanley Strauss: “Mr. Strauss, at that particular time was your daughter Carol under a doctor’s care?” After the court sustained an objection that the question was irrelevant, plaintiffs made “an offer of proof that if this witness were permitted to testify he would'testify that she was under a doctor’s care, to-wit: a psychiatrist, that she was taking medication as prescribed by the doctor at that particular time.” On appeal plaintiffs argue only that this question was relevant because the “information would indicate that Carol Stitt had given false testimony” in that she had earlier answered, “No, sir, I had not” to the question, “Had you had any marijuana, narcotics, or other drugs that you were taking that particular night?” Assuming this suggested response would be what the witness would have said and that this would be a contradiction of her testimony, it is still unclear how this would aid plaintiffs’ case in that plaintiffs do not contend Carol said anything to her father other than what she had testified to. Apparently plaintiffs seek to show that Carol lied to her father about the true facts of the occurrence but as discussed above, this is not relevant. (Plaintiffs did not argue at trial and do not argue now that this question and answer would be relevant to indicate that defendant Stanley’s belief in the veracity of what his daughter told him was not reasonable and we do not consider its relevancy on this ground.)

Plaintiffs’ fifth and seventh sub-points are very similar. Plaintiff attempted to ask defendant Stanley Strauss, “Were you in favor of this marriage [between his daughter and plaintiff] to begin with?” The trial court sustained an objection to the question on the grounds of irrelevancy. The court also sustained a like objection to the following question asked of defendant Betty Strauss: “Isn't it a fact when your daughter married Joe you didn’t approve of it?” Assuming that the witness would have said they were against the marriage between their daughter and plaintiff when they got married, that this was because they did not like plaintiff then and that this would show they did not like him either when they pressed charges against him or when they were testifying in the instant case, the questions were proper as tending to show bias and prejudice against plaintiff. However, it was already abundantly clear - from all the evidence in the case that there was disaffection, animosity and ill feeling between defendants and plaintiff. Under these circumstances it was within the trial court’s discretion to limit questioning as to specific instances and examples of the par- ■ ties’ bad feelings particularly when the two questions about which plaintiffs complain are only remotely relevant in proving bias against plaintiff at some relevant time. State v. Glass, 554 S.W.2d 426, 429-31[4-6] (Mo.App.1977). Although it is not within the trial court’s discretion to prevent cross-examination on bias and prejudice entirely, Thornton v. Vonallmon, 456 S.W.2d 795, 798[4] (Mo.App.1970), here the trial court did allow several questions on cross-examination of these two witnesses regarding their bias and prejudice against plaintiff. The point is without merit. State v. Campbell, 543 S.W.2d 508, 511-12[8-9] (Mo.App.1976).

Plaintiffs’ final (sixth) subpoint, which has no relation to the other sub-points, concerns the court’s action in overruling an objection to an answer given by the city attorney who handled the prosecution of plaintiff on the charge of destruction of property (defendant’s car). The witness was asked if there was an agreement to dismiss the case if plaintiff would pay court costs. The witness said there was such an agreement. He then started to explain why he would not simply nolle prosse the case. Plaintiff objected that the answer was going beyond the scope of the question. Even though the answer did go beyond the scope of the question, we find no reversible error in overruling plaintiffs’ objection and allowing the testimony in because, as previously set forth, there is sufficient competent evidence in this court-tried case to support the trial court’s decree. Broyles v. Broyles, 555 S.W.2d 696, 700[10] (Mo.App.1977). In Broyles the court notes that in a court-tried case it is practically impossible to predicate reversible error on the erroneous admission of evidence.

The trial court’s judgment against the plaintiffs on all three counts is affirmed.

DOWD and KELLY, JJ., concur.


source: Caselaw Access Project

author: SMITH, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Larry EVANS, Defendant-Appellant.
    No. 38555.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 18, 1978.
    Motion for Rehearing and/or Transfer Denied June 8, 1978.
    Application to Transfer Denied July 24, 1978.

      Blair Drazic, Asst. Public Defender, Robert C. Babione, Public Defender, St. Louis, for defendant-appellant.
    George A. Peach, Circuit Atty., Marion G. Eisen, Asst. Circuit Atty., St. Louis, John D. Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Geri., Jefferson City, for plaintiff-respondent.
   SMITH, Judge.

Defendant appeals his conviction and sentence following a guilty plea on a charge of selling marijuana. The sentence was five years imprisonment. We have been awaiting the decision in State v. Mitchell, 563 S.W.2d 18 (Mo.1978), which raised the same issues as those before us. We affirm.

Defendant may appeal on grounds that the statute under which he was convicted is unconstitutional. These constitutional grounds were not waived by the guilty plea. See State v. Mitchell, supra.

Defendant contends that the classification of marijuana as a Schedule I drug is arbitrary and irrational because marijuana has an accepted medical use and is safe for treatment. No evidence of these facts was presented to the trial court nor to this court. Defendant relies upon the decision of one trial court in Washington, D.C. finding as to one defendant with glaucoma a possible medical benefit from the use of marijuana. This is not evidence of medical usage. As pointed out in State v. Mitchell, supra, “The present state of knowledge of the effects of marijuana are still incomplete and is marked by much disagreement and controversy.” l.c. 29. In such a posture we are dealing with a debatable medical issue and cannot convict the legislature of arbitrary or irrational conduct in including marijuana in Schedule I nor in failing to remove it on the basis of present knowledge. State v. Mitchell, supra.

Judgment affirmed.

CLEMENS, P. J., and DOWD, J., concurs.

      . State v. Mitchell, supra, indicates that drugs included on Schedule I by legislative pronouncement must meet the same standards as drugs which may be added to the list by. action of the division of health, an administrative agency. The state in its brief here takes a contrary position. The state apparently did not urge its present position in its brief in Mitchell. We need not reach the question.


author: CLEMENS, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Milton R. COUCH, Appellant.
    No. 38684.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 18, 1978.
    Motion for Rehearing and/or Transfer Denied June 8, 1978.

      Robert C. Babione, Public Defender, James W. Whitney, Jr., Joseph F. Beatty, Charles H. Mostov, Asst. Public Defenders, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Nells C. Moss, Jr., Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Defendant Milton Rene Couch has appealed his conviction for first degree murder for which he was sentenced to life imprisonment. The only issue is whether the state was erroneously allowed to impeach its own witness, or merely refreshed her recollection.

On the evening of May 2,1976 defendant entered a cocktail lounge and repeatedly bumped into the victim, Charles Sylvester Adams, seated next to him at the bar. The victim asked defendant if he wanted his seat and defendant said no. Shortly thereafter defendant put his gun to the victim’s head and shot him.

The issue on appeal arises from the trial court’s ruling permitting the recall of prosecution witness Betty Tessy, a barmaid at the lounge. On direct examination she testified defendant had come into the lounge earlier in the day, ordered a drink, placed a pistol on the bar, and said he was looking for a man who had beaten his wife and her son. The state’s attorney inquired further into her conversation with defendant.

“Q. And after he laid that gun up on the counter and said that, what you already related him saying, did he say anything further about the gun?
A. No, he didn’t.”

Following four similar exchanges during direct and redirect examination Miss Terry was excused and a recess declared.

Over defendant’s objections the witness was then recalled and changed her testimony. The state’s attorney again inquired whether defendant had said anything further about the gun. Miss Terry responded, “He said he’s going to use it before the day was over.” The state’s attorney acknowledged he had spoken with the witness during the recess and asked her why she had not testified as she had previously told him she would.

Defendant contends the trial court erred in permitting the recall of Miss Terry because it was an attempt by the state to impeach its own witness; that the error was prejudicial in that it helped the state to prove an essential element of the offense charged.

This case presents a question of refreshment of memory rather than impeachment. As ruled in Coats v. Old, 237 Mo. App. 353, 167 S.W.2d 652[8] (1942): “It is competent to exhibit to a witness a statement made by her prior to her testimony at the trial, for the purpose of refreshing the witness’ recollection, and such is not impeachment." See also Voyles v. Columbia Terminals Co., 223 S.W.2d 870[6, 7] (Mo.App.1949), tersely holding: “Refreshing the recollection of a witness is not impeaching or contradicting him.”

Applying this rule, we hold that the line between refreshment of memory and impeachment was not crossed. There was no attempt made to introduce a prior inconsistent statement by the witness. The cases cited by the defendant are therefore distinguishable, as they deal primarily with impeachment of a witness through prior inconsistent statements. The witness here simply forgot a portion of her testimony and subsequently had her memory refreshed by the state’s attorney. “The refreshing of a witness’ memory is a matter resting in the discretion of the trial court, whose rulings will not be disturbed in the absence of abuse of discretion.” Brown v. Chicago, R.I. & P. Ry. Co., 315 Mo. 409, 286 S.W. 45[3] (Mo.1926); and see State v. Bradley, 361 Mo. 267, 234 S.W.2d 556[10,11] (1950). We find no abuse here.

We note however the procedural method of memory refreshment here was irregular. Generally, refreshment of memory while a witness is on a stand is more in accord with orderly procedure and should be followed in the exercise of the trial court’s discretion. Nevertheless, we will not interfere if variance from usual procedure does not result in the deprivation of the right to a fair trial. State v. Henson, 290 Mo. 238, 234 S.W. 832[4] (1921). The availability of the witness for cross examination assured this fairness. In an analogous situation, it has been held a witness’ memory can be refreshed during a noon recess which interrupted his direct testimony.

It is within the trial court’s discretion to permit the state to recall a witness prior to resting its case. State v. Sullivan, 452 S.W.2d 802[1] (Mo.1970). Since the law encourages the correction of erroneous statements (State v. Bojorquez, 111 Ariz. 549, 535 P.2d 6[26-28] (Ariz.1975)), we hold the court did not err in permitting the recall of the witness to correct her testimony after her memory was refreshed.

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.


author: SNYDER, Judge.

text:
    Josephine JACKSON, Intervenor-Appellant, v. Irene WHEELER and Anna Benham, Co-Administratrices of Estate of Michael Matejewski, Deceased, Irene Wheeler, Individually, Anna Benham, Individually, Lillian Scalf and Violet Saville, Plaintiffs, v. Lyle MATEJEWSKI, Defendant-Respondent.
    No. 38872.
    Missouri Court of Appeals, St. Louis District, Division Four.
    April 18, 1978.
    Motion for Rehearing and/or Transfer Denied June 8, 1978.

      J. Patrick Wheeler, Canton, for appellant.
    J. William Holliday, Kahoka, for Lyle Matejewski.
    Robert W. Blakemore, Akron, Ohio, for Lillian Scalf.
    William 0. Green, Memphis, for Irene Wheeler.
    James T. Holcomb, Trenton, for Anna Benham.
   SNYDER, Judge.

Michael Matejewski (Michael) sued to cancel his deed to his son, Lyle Matejewski, of 180 acres of farm land. A default judgment taken after service by publication was set aside by the trial court. Plaintiff died before trial and his administratrices were substituted. Plaintiff’s daughter, Josephine Jackson, was permitted to intervene as defendant. Prom a judgment in favor of defendant Lyle Matejewski, the intervenor appeals.

Appellant contends that the trial court erred in: (1) sustaining objections to her testimony on the basis of § 491.010, RSMo 1969, the dead man’s statute; (2) refusing to receive testimony at the hearing on defendant’s petition for review under Rules 74.12 and 74.15; and (3) directing a verdict for defendant at the close of intervenor’s case.

We review this case upon both the law and the evidence giving due regard to the opportunity of the trial court to judge the credibility of the witnesses. Rule 73.-01(3). This has been construed to mean “that the decree or judgment of the trial court will be sustained . . . unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

The parties stipulated that a general warranty deed dated January 8, 1959 from Michael to respondent Lyle Matejewski reserving a life estate to Michael, was signed and duly recorded in the Clark County records and that Michael subsequently executed a quitclaim deed dated November 21, 1972 and recorded on August 20,1973 in the Clark County records which conveyed the property in question to “Mike Matejewski and Josephine D. Jackson as joint tenants with the right of Survivorship and not as tenants in common . . . Michael’s petition filed April 26,1974 alleged that the consideration for the conveyance to respondent was an oral contract under the terms of which respondent agreed to maintain and support Michael during the remainder of his natural life and to furnish him a proper and suitable home, clothing, food, medical services, a suitable burial on his death and to operate and manage the farm and pay the taxes and costs of upkeep of the farm. The petition further alleged respondent’s breach of the oral contract and requested that the warranty deed be cancelled. Personal service on respondent was attempted unsuccessfully. Service by certified mail was returned marked: “Not Found, Address Unknown”. Constructive service was then obtained by publication in a local newspaper. Appellant was the only witness who testified at the default hearing on plaintiff’s petition. The plaintiff did not testify. A default judgment was granted setting aside the warranty deed of January 8,1959 and revesting the title to the real property in Michael alone.

Michael died on March 23,1975. Respondent’s petition for review of the default judgment as provided in Rule 74.12 et seq. was filed'on May 5, 1975 alleging that no attempt had been made to ascertain respondent’s true address after Michael’s petition to set aside the deed was filed and that respondent’s address could have been discovered if an attempt had been made. The petition further denied that there was ever any agreement between respondent and his father; that the deed was given because Michael wished his son to have the property and to avoid probate; and that the petition upon which the default judgment was rendered was untrue in other material respects.

The administratrices of Michael’s estate were substituted as plaintiffs. The admin-istratrices were two daughters of Michael and they individually, along with two other daughters, were joined as additional plaintiffs in the suit. Josephine Jackson, also Michael’s daughter, was permitted to intervene as a defendant.

At the hearing in May of 1976 on the petition to review the default judgment, the trial court refused to hear evidence offered by the substituted plaintiffs or the appellant. The court found the allegations of defendant’s petition were sufficient to comply with Rule 74.15, set aside the default judgment and granted respondent leave to answer the original complaint. His answer denied the existence of an agreement to care for his father. Respondent also filed a cross-claim to quiet title and a petition for an accounting. Appellant, as intervenor, answered respondent’s cross-claim and filed her own petition to set aside the deed, to quiet title and for actual and punitive damages. The claims for an accounting and for damages have been dismissed and need not be considered in this appeal.

Only appellant introduced evidence at the trial. Much of the testimony of two of her witnesses (Michael’s attorneys) was successfully objected to as hearsay. Objections to appellant’s testimony as to any transactions or conversations of Michael prior to his death were sustained on the grounds that it was inadmissible under the dead man’s statute, § 491.010, and also because it was hearsay and stated conclusions of appellant as to Michael’s intent. Appellant did testify that after her father’s death she had paid the taxes on the land, leased it to various tenants and supervised its operation. She also introduced evidence that she had arranged and paid for her father’s funeral. Respondent’s motion for a directed verdict was granted by the court at the close of plaintiffs’ and intervenor-appellant’s evidence and this appeal followed.

Appellant urges that objections to her testimony should not have been sustained because she was not a party to the original contract and since her testimony was in favor of the deceased party it was not barred by the dead man’s statute. We hold against the appellant on this point.

Appellant in her offer of proof stated she would have testified that the deed to respondent was given upon consideration that he would care for his father and that instead respondent had abandoned his father; that appellant did in fact care for Michael; that respondent had tricked his father and never intended to comply with the terms of the agreement; and that it was Michael’s desire that, respondent should never have the fee simple title to the land. Her testimony would further be that Michael intended she should be the owner of the land. The court sustained the objection to this line of testimony on the basis that appellant was disqualified under § 491.010 and that many of the statements presented in the offer of proof were objectionable as being conclusions and hearsay.

The dead man’s statute is an enabling statute changing the common law rule which barred parties to litigation from testifying. The statute permits interested parties to testify but then provides in the negative that “where one of the original parties to the contract or cause of action in issue and on trial is dead, . the other party to such contract or cause of action shall not be admitted to testify either in his own favor or in favor of any party to the action claiming under him, . ” § 491.010, RSMo 1969.

We are confronted with a unique situation but research of the law relating to § 491.010 indicates that appellant’s testimony is inadmissible. To be rendered incompetent under the quoted first proviso of § 491.010, a witness must be both interested and a party to the contract or cause of action. Ham & Ham Lead and Zinc Inv. Co. v. Catherine Lead Co., 251 Mo. 721, 158 S.W. 369, 374[4] (1913); Galemore v. Haley, 471 S.W.2d 518, 521[4] (Mo.App.1971). Admittedly appellant was not a party to the contract, that is, the deed between Michael and respondent, but there is no doubt that appellant was a party to the action. She intervened as a party defendant. Her interest plainly was adverse to that of plaintiffs’, the representatives and other heirs of Michael.

Was her interest of such a nature that it barred her from testifying? In discussing this subject, Missouri courts have cited with approval 58 Am.Jur., Witnesses § 288 which reads in part as follows:

Following the trail blazed by the common-law decisions, it is held that interest, to disqualify a witness under the statute here considered, must be present, certain, and vested, not uncertain, remote, or contingent, and must be in the event of the action. In other words, the interest of a witness must be such that he will gain or lose by the direct legal operation and effect of the judgment of the court disposing of the facts in dispute, or the record must be legal evidence for or against him in some other action.

[Cited in part in Fisher v. Cox, 312 S.W.2d 775, 778 (Mo.1958)]. The issue of interest of a witness was considered in Beckers-Behrens-Gist Lumber Co. v. Adams, 311 S.W.2d 70 (Mo.App.1958). The court stated at page 73, “It is the witness’ interest at the time he is offered as a witness that determines his competency, not his interest at the time of the occurrence or of the formation of the contract.” In American Ins. Co. v. McMichael, 238 F.Supp. 154 (E.D.Mo.1964), rev’d on other grounds, 351 F.2d 665 (8th Cir.1965), the court said at page 156:

The test is not, as defendants contend, based upon the fact that if decedent were living he would refute the testimony given by the witness. This would be true in every case where one of the parties to the litigation was dead and some witness was offered to give testimony adverse to the decedent’s position in the litigation. The determining factor is the interest of the witness at the time he is called to testify.-

Applying these tests, appellant was interested for purposes of the statute. The direct legal operation and effect of the judgment finding title in respondent was to convert her title by quitclaim into a nullity. She had a direct, certain and present interest in the result of the action.

The facts in Stoops v. Stoops, 276 S.W.2d 188 (Mo.1955) are similar. In that case, the children of the decedent by his first wife brought action against the second wife to cancel a deed. A deed was executed by decedent and the first wife to a grantee who then conveyed the same property to the decedent and his second wife. The court held that the dead man’s statute precluded one of the children from testifying as to conversations between his mother, the first wife, and father concerning the execution of the deeds or the circumstances under which his mother executed the deed.

Appellant cites DeMott v. Dillingham, 512 S.W.2d 918 (Mo.App.1974) to prove the abstract statement of law to the effect that the purpose of § 491.010 is to place all parties to the litigated proceeding on a parity so that as to transactions with a person now deceased, the surviving party is made incompetent to the extent his testimony might be questioned by the other party if living. That is a correct statement of law. However, here appellant was in fact a party to the action. She intervened as a defendant. She occupied a position adversary to plaintiffs who were decedent’s representatives and heirs and plainly would have had an undue advantage had her testimony as to pre-death transactions or conversations been permitted.

The situation here is distinguishable from that in Spaeth v. Larkin, 325 S.W.2d 767 (Mo.1959) in that appellant is not claiming as an heir, as in Spaeth, but as the grantee in a deed to her signed by the decedent, a deed by means of which she is seeking by one of the counts in her intervenor’s petition to quiet title to the land in her own name. The trial court ruled properly in sustaining the objection to appellant’s testimony on the ground that it was inadmissible under § 491.010. In addition, the record shows clearly that much of the offered evidence was objectionable because it was obviously hearsay and rife with conclusions of the witness as to the intentions of decedent.

We come now to appellant’s contention that the trial court erred in refusing to allow testimony at the hearing on respondent’s petition for review of the default judgment.

Respondent argues that appellant has not preserved this point for review because of her failure to file a notice of appeal within the statutory time after the trial court vacated the default judgment. He cites Dillbeck v. Johnson, 344 Mo. 845, 129 S.W.2d 885 (1939) as his authority. The court there stated at 129 S.W.2d at page 886, “The petition for review is of the nature of an independent action and the order of the trial court ruling on the petition is an order from which an appeal may be granted.”

The cases are in conflict on this point. Dillbeck does not mention Bussiere v. Sayman, 171 Mo.App. 11, 153 S.W. 507 (1913), certified to the Supreme Court, Bussiere’s Adm’r v. Sayman, 257 Mo. 303, 165 S.W. 796 (Mo. banc 1914), Stanton v. Hanna, 185 Mo.App. 91, 170 S.W. 452 (1914), certified to the Supreme Court, 199 S.W. 145 (Mo.1917) or Holder v. Chidister, 193 S.W. 568 (Mo.1917). In Bussiere’s Adm’r, the court in banc examined in depth the question of the appealability of an order vacating a default judgment. The court considered the question from every available standpoint of reason and authority and ruled that although an order denying a petition or motion to set aside a default judgment is appealable, since otherwise the defendant is out of court, an order setting aside a default judgment is not appealable prior to the trial on the merits, and in so ruling overruled prior cases to the contrary. Stanton and Holder followed the ruling in Bussiere’s Adm’r.

Later cases, again not mentioning Bussi-ere’s Adm’r or other cases to the contrary, hold that an appeal will lie from an order or judgment setting aside a default judgment in favor of the appellant. Casper v. Lee, 362 Mo. 927, 245 S.W.2d 132 (Mo. banc 1952); Edwards v. Rovin, 322 S.W.2d 139 (Mo.App.1959).

However, still later this court in Farrell v. DeClue, 365 S.W.2d 68, 72-74 (Mo.App.1963) analyzed in depth the question of the appealability of an order vacating a default judgment and, citing Bussiere’s Adm’r, Stanton and other cases, held that no appeal may be taken from such an order. The court did not mention either Casper or Ro-vin in its discussion of the questions, but Casper can be distinguished in that the motion there was in the nature of a writ of error coram nobis and because of errors patent on the record, not a petition for review of a judgment rendered after constructive service.

No sharp distinction is drawn in the decisions between motions to set aside default judgments after personal service on the defendant and petitions for review directed to default judgments after constructive service in accordance with Rule 74.12 et seq. However, the reasoning in both sets of circumstances is the same. To allow appeals from decrees setting aside default judgments only complicates lawsuits by opening up the possibility of two appeals in the same case. In addition, in an appeal after a trial on the merits, the appellate court will have a more complete record of the evidence on both sides, and thus will be able to arrive at a better reasoned final decision based on all the facts.

The reasoning in the Bussiere’s Adm’r and Farrell cases seems to us preferable. It reduces the number of appeals and thus expedites the legal process. Further, it comports more with fairness and justice by preventing the plaintiff from having two bites at the apple, one when he appeals the vacation of the default judgment and the other at a trial on the merits if his first appeal fails. Plaintiff is not harmed if he is not allowed before trial to appeal the vacation of the default judgment since he may win in a trial on the merits. If he loses, he can still raise the point on appeal. Stanton v. Hanna, supra.

Although we agree that appellant has preserved this point for review, we hold that it was not error to vacate the default judgment without taking testimony. The remedy of a petition for review is available to a defendant notified by constructive service. Rule 74.12; Witcher v. Hanley, 299 Mo. 696, 253 S.W. 1002 (1923). The record shows that respondent was served only by publication. The record also shows that the petition for review was filed within the three year period of limitation prescribed by Rule 74.14. The question of compliance with the requirements of Rule 74.15 as to contents was correctly ruled in respondent’s favor by the trial court. The law under the then applicable statutes which corresponds with the rules now in effect is well stated in Osage Investment Co. v. Sigrist, 298 Mo. 139, 250 S.W. 39 (1923). The court at 250 S.W. at pages 40 and 41 said:

In order to avail himself of the relief afforded by the statute, it is only necessary under section 1532 [Rule 74.12] that defendant, within the time limited, ‘appear, and by petition for review, show good cause for setting aside such judgment.’ The ‘petition for review’ required by that section is explicitly defined by section 1535 [Rule 74.15]. It must be verified by the affidavit of defendant or by his attorney of record; and it must state that defendant was not summoned nor made a party as representative of one who was summoned, that he did not appear to the action, and that the petition of the plaintiff, upon which judgment was rendered, ‘is untrue in some material matter, setting it forth, or that he has, and then had, a good defense thereto, setting forth such defense, or both. If the petition conforms to these requirements, it is in and of itself a showing of good cause for setting aside such a judgment, provided the matter with respect to which the plaintiff’s petition is alleged to be true is in fact material
[A]s to the verity of the statements with reference to the untruth of the allegations of plaintiff’s petition . . . the petition is conclusive for the purpose of showing good cause for vacating the judgment. The statute does not contemplate that there shall be two trials on the merits.
It follows that on a hearing of a petition for review the only thing to be passed upon by the court, outside of the record facts and the merely formal requisites of the petition, is the materiality of the matter as to which the plaintiff’s petition is therein alleged to be untrue,

An examination of the record and respondent’s petition for review indicates that requirements of the rule have been met. His allegation that Michael’s original petition was untrue in alleging the existence of an agreement to care for and support him in consideration for the deed and that an accounting was due on the property satisfies the requirement that the petition for review state that the “petition of the plaintiff, upon which the judgment complained of was obtained, is untrue in some material matter . . . .” Rule 74.15. The petition for review was verified. “If a petition for review follows and complies with said provisions of the statute, the court is without discretion in the matter. It must grant the petition.” Dillbeck v. Johnson, supra. The statute referred to by the court in Dillbeck is the same as the rule applicable here.

Appellant cites cases relating to interpretation of the word “may” as used in the statutes. It is true that the word “may” is used in Rule 74.12 and in the statutes from which the rule was derived, but in the context of this rule the discretion of the trial court extends only to determination of full compliance of the petition with the rules, not the merits of the case. The allegations of the petition must be accepted as true for purposes of ruling on the vacation of the default judgment. When the petitioner for review fulfills the requirements of Rule 74.15 as to the contents of his petition and when the record shows the other necessary facts, the trial court has no discretion and the petition must be granted. Dillbeck v. Johnson, supra; Osage Inv. Co. v. Sigrist, supra.

Appellant cites Butcher v. White, 267 S.W.2d 701 (Mo.App.1954) in support of his argument that the trial court has discretion in deciding whether to set aside a default judgment and therefore, should hold an evi-dentiary hearing. The case is not in point. In Butcher, the judgment was not vacated. Instead, the trial court refused to set aside the default because the petition for review was defective in that it failed to deny the truth of the allegations in plaintiff’s petition or to state facts from which the judge might have determined that there was a good defense to the action on the merits.

The statute relating to the review of default judgments on service by publication is highly remedial, intended to give a defendant, against whom default judgment has been rendered on service by publication, an actual day in court before his property is taken from him by judicial decree and the statute should be liberally construed to promote its beneficent purpose. Chilton v. Cady, 250 S.W. 403 (Mo.1923). The court ruled properly in vacating the default judgment without hearing evidence.

Appellant finally charges that the court erred in directing a verdict for defendant because there was evidence of a confidential relationship between Michael and respondent at the time the warranty deed was made and that evidence of a confidential or fiduciary relationship at the time of a conveyance shifts the burden of proof to the grantee. This point is also ruled against appellant.

Determinative of this point is the total absence of evidence of a confidential relationship. We have been cited to no testimony which even remotely suggests that a fiduciary relationship existed between Michael and respondent. The only evidence in the record is that for a short period of time both lived on the land, title to which is being questioned here. They occupied separate residences during that time. There is not a scintilla of evidence of any agreement between them, of any joint effort in connection with the operation of the farm or of any actions taken by Michael as a result of advice or guidance by respondent. There is no evidence of the trust or reliance that is required in order to find a confidential relationship. Jackson v. Tibbling, 310 S.W.2d 909, 915[8] (Mo.1958). The Jackson case was cited by appellant but it is clearly distinguishable. In Jackson there was weighty evidence of reliance and trust. There, plaintiff designated defendant as her safe-deposit box deputy and relied on him for assistance in matters previously handled by her deceased husband. Defendant was her only adviser other than a lawyer who advised her on legal matters. Here no such facts are before us.

We cannot consider evidence which might have been given by appellant if she had been allowed to testify. In truth, there is more evidence in the record of a possible confidential relationship between appellant and Michael than there is to substantiate such a relationship between the respondent and Michael.

The other cases cited by appellant are not in point. They relate to fraud. There is no evidence before the court of any fraud or misrepresentation on the part of respondent.

AFFIRMED.

DOWD, P. J., and ALDEN A. STOCK-ARD, Special Judge, concur.


author: GUNN, Presiding Judge.

text:
    Willie Lee WILLIAMS, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 38874.
    Missouri Court of Appeals, St. Louis District, Division Three.
    April 25, 1978.
    Motion for Rehearing and/or Transfer Denied June 8, 1978.
    Application to Transfer Denied July 24, 1978.
    See also Mo.App., 522 S.W.2d 327.
    Sara T. Harmon, Asst. Public Defender, St. Louis, for movant-appellant.

      John D. Ashcroft, Atty. Gen., Michael H. Finkelstein, Asst. Atty. Gen., Jefferson City, for respondent.
   GUNN, Presiding Judge.

Movant appeals the denial of his Rule 27.26 motion seeking to set aside his felony murder and first degree robbery convictions. He has raised four points of alleged error. As none has merit we affirm the denial of the motion.

The facts leading to movant’s conviction are found in State v. Williams, 522 S.W.2d 327 (Mo.App.1975). Briefly, movant was convicted of felony murder by reason of a homicide committed by his accomplice during the course of an armed robbery. Mov-ant was found to have actively participated in the robbery.

Movant’s first point on appeal from the denial of his 27.26 motion is that he was deprived of his right to due process by reason of alleged error in the burden of proof instruction submitted to the jury. “Matters regarding instructions are trial errors, and not properly subject for review on a Rule 27.26 motion.” Williams v. State, 550 S.W.2d 821, 823 (Mo.App.1977). We therefore rule against movant concerning the alleged erroneous instruction.

Movant next claims he was illegally jeopardized twice for the same offense, in that he was tried and convicted of armed robbery as well as felony murder based on that robbery. This point was not raised at trial in movant’s motion for new trial nor in his direct appeal. The point is thus not a subject for Rule 27.26 relief. Schleicher v. State, 483 S.W.2d 393 (Mo. banc 1972); Manns v. State, 558 S.W.2d 371 (Mo.App.1977).

Movant’s third point charges that his conviction under § 559.010 RSMo 1969, repealed 1975, must be reversed as the felony murder doctrine was unconstitutional as codified. Constitutional questions must be raised at the earliest possible opportunity in order to be preserved. State v. Hegwood, 558 S.W.2d 378 (Mo.App.1977). This Rule 27.26 proceeding is too late to raise mov-ant’s constitutional issue for the first time.

Finally, movant asserts that the indictment which charged him with murder first degree, common form, afforded insufficient notice that he could be convicted under the felony murder doctrine. This, issue is again a matter which could have been raised in the underlying proceedings; it was not. Hence, this point is not cognizable in a Rule 27.26 motion. Manns v. State, supra.

Judgment affirmed.

SIMEONE, C. J., and KELLY, J., concur.


author: REINHARD, Judge.

text:
    Deanne WRIGHT, Plaintiff-Respondent, v. Kingsley O. WRIGHT, Defendant-Appellant.
    No. 38983.
    Missouri Court of Appeals, St. Louis District, Division Two.
    April 25, 1978.
    Motion for Rehearing and/or Transfer Denied June 8, 1978.

      Gerald A. Rimmel, Frank Susman, Sus-man, Schermer, Wilier & Rimmel, St. Louis, for defendant-appellant.
    Justin C. Cordonnier, Armstrong, Teasdale, Kramer & Vaughn, St. Louis, for plaintiff-respondent.
   REINHARD, Judge.

Defendant-appellant appeals from a decision of the Circuit Court of St. Louis County in which it held that plaintiff-respondent was an accommodation party on a note jointly executed by appellant and respondent. Appellant was found primarily liable on the note and was ordered to hold respondent harmless and to indemnify her for losses or damages (including her reasonable attorney’s fees) that she might sustain as a result of her having signed the note. We affirm.

Appellant procured a divorce from his wife, the respondent, on June 6, 1957. The divorce decree granted care, custody and control of the children borne of the marriage to respondent, and ordered appellant to pay child support. In addition, appellant was required to convey to respondent all right, title and interest in the family home and to pay the existing mortgage on the home.

On October 2, 1963, the parties to this litigation co-signed on a promissory note secured by a deed of trust on the aforementioned home. The loan of Forty Thousand Dollars ($40,000.00) was made and the proceeds were distributed by Northwestern Bank and Trust Company. Disbursements as shown on defendant’s “Exhibit A”, were as follows:

$22,488.52 Mercantile Mortgage Co.
8,776.25 Northwestern Bank and Trust Company
15.70 Recording Fees
222.00 Land Title Investment Co.
20.00 Bank Appraisal
8,477.53 Customer
$40,000.00

The record offers no indication of the specific purposes of the substantial disbursements to Mercantile Mortgage Co. and Northwestern Bank and Trust Company, but appellant does not contend that respondent benefitted from them. The payments to Land Title Investment Co.; for recording fees; and the bank appraisal pertain to the processing of the loan. It is only disbursement of the net proceeds of Eight Thousand Four Hundred Seventy-Seven Dollars and Fifty Three Cents ($8,477.53) that becomes a factor in this litigation. We delay consideration of the matter, however, and will return to it at a later point in the opinion.

Appellant assumed complete responsibility for monthly payments on the loan for approximately eleven years and testified he did so because of his sense of responsibility to the children living in the house. In October, 1974, appellant informed respondent of his intention to discontinue payments after 1974, and that the balance of the loan thereafter would become respondent’s sole responsibility. Appellant testified that dissatisfaction with respondent’s methods of raising the children was the reason for his decision to discontinue payments. Despite his stated intention, appellant continued to pay one-half of the amount of the required monthly payments. This note was due to expire on October 1, 1976, with a balance of Twenty-Five Thousand Four Hundred Fifty Dollars and Seventy-Seven Cents ($25,450.77) remaining.

Appellant claims that he and respondent, as co-signatories on the note, are mutually obligated to pay the indebtedness; that he has fulfilled his share of the obligation on the note; and that respondent alone is obligated to pay off the existing indebtedness. Respondent maintains that pursuant to an agreement she and her former husband reached prior to executing the loan, she signed the note as an accommodation party and the house was used as collateral. She disclaimed any liability on the note, and the trial court ruled in her favor. In his first assignment of error, appellant contends the trial court improperly admitted parol evidence, by way of respondent’s testimony, of her status as an accommodation party. Such testimony, he argues, constitutes an attempt to vary the clear and unambiguous terms of the written instrument. As a matter of general law, there may be a presumption that co-makers of a promissory note, in the absence of evidence to the contrary, are equally liable. Bills and notes, however, do not. necessarily express the entire agreement between ostensible co-makers. Thus our courts have repeatedly held that in an action on a note by the original parties, an ostensible maker may show by parol evidence that he signed for the accommodation of the other. First National Bank of Liberty v. Latimer, 486 S.W.2d 262, 267 (Mo.1972); Allison v. Dilsaver, 387 S.W.2d 206, 213 (Mo.App.1965); Massa v. Huehnerhoff, 59 S.W.2d 723, 724 (Mo.App.1933); Dickherber v. Turnbull, 31 S.W.2d 234, 236 (Mo.App.1930).

Appellant next argues the court erred in finding that respondent signed as an. accommodation party because the evidence fails to demonstrate the existence of an agreement between the parties, and secondly, evidence that respondent received the net proceeds of the loan precludes her status as an accommodation maker. Appellant is correct in his assertion that respondent has the burden of proving she was an accommodation party, and we believe respondent sustained that burden. The evidence showed that appellant needed money for business purposes and asked respondent to jointly execute loan documents at Northwestern Bank and Trust Company.

She testified that he assured her he would be responsible for repayment of the loan, and in fact, appellant made regular payments on the note for a period of approximately eleven years. Moreover, that respondent was in possession of the house is a factor not to be overlooked, and in this regard, appellant testified the house was the only asset available for his use in securing a loan. Had respondent wished to obtain a loan, appellant’s signature on the note would not have been necessary. We conclude, therefore, the evidence was sufficient to warrant a finding that the parties agreed respondent’s signature was for the accommodation of appellant.

The above notwithstanding, respondent, as a matter of law, could not be an accommodation maker if it were shown she received value in return for her signature on the instrument. Section 401.029, RSMol959. In this instance, there is undisputed evidence that a treasurer’s check in .the amount of Eight Thousand Four Hundred Seventy-Seven Dollars and Fifty-Three Cents ($8,477.53) was made payable to and endorsed by respondent. This fact raises a presumption that respondent, as the endorser, received payment of the amount specified on the check. The presumption is rebuttable, however. Hubbard v. Happel’s Estate, 382 S.W.2d 416, 423-424 (Mo.App. 1964). Respondent stated she received none of the proceeds of the loan including the Eight Thousand Four Hundred Seventy-Seven Dollars and Fifty-Three Cents ($8,477.53). She stated she was merely a “straw party”. Appellant testified at the trial that some of the Eight Thousand Four Hundred Seventy-Seven Dollars and Fifty-Three Cents ($8,477.53) went to Mrs. Wright and, “None of it was used for my personal use.” However, in a deposition taken two weeks before the trial, he stated that he did not remember if she had turned the check over to him. There was sufficient evidence to overcome the presumption and to create a question of fact to be resolved by the trier of the facts.

The standard of review to which we are bound in this case was set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Murphy requires us to sustain the judgment of the trial court “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law”.

Appellant urges adoption, of a different standard of review on the grounds that the judge who tried the case was removed from office prior to the entry of judgment by the successor judge, Judge Corrigan. This court recently held in somewhat similar circumstances that a successor judge cannot render a decision based on previously adduced evidence absent a stipulation by the parties. Smith v. Smith, Mo.App., 558 S.W.2d 785 (1977). In the instant case, the parties agreed to have the case transferred to Division 7 and to have Judge Corrigan decide the case on the basis of the prepared transcript. Appellant was aware of conflicts in the testimony that of necessity would have to be resolved by Judge Corri-gan. The case reaches us in this posture by agreement of the parties, and thus we reject appellant’s request to modify our standard of review to accord with the particular circumstances of the case.

Appellant further claims that the court erred in the inclusion of “attorney’s fees” in its order requiring him to hold respondent harmless and to indemnify her for any losses she might sustain as a result of having signed the note. Ordinarily an allowance of attorney’s fees is erroneous unless such an allowance is authorized by statute, contract, or by a court of equity under very unusual circumstances. In re Kerr, 547 S.W.2d 837, 841 (Mo.App.1977). However, the court’s order is not contrary to this rule. The note provided for the payment of a reasonable attorney’s fee to the holder of the note in the event of default and collection required employment of an attorney. We understand the court’s order to mean that in the event respondent was required to make such payment, (attorney’s fees to the holder), appellant should reimburse her in accordance with their agreement that he be solely responsible on the loan.

Finally, appellant argues the court erred in ordering specific performance of the accommodation agreement since there was no showing respondent lacked an adequate remedy at law. The note provided that “[i]f default be made in the payment of any of said monthly installments when due, the holder of this note may at the option of the said holder declare all unpaid indebtedness evidenced by this note immediately due and payable, . . . The note was secured by a deed of trust on respondent’s house, and default might have resulted in foreclosure by the holder under the deed of trust. Such a loss would not be compensable in money damages. Respondent’s remedy at law would not be “plain, adequate, complete, and efficient” so as to defeat the jurisdiction of equity to decree specific performance. Easley v. Easley, 333 S.W.2d 80, 86 (Mo.1960). The order of the trial court was proper.

Respondent has filed an affidavit with this court stating that she has sold her home and satisfied the note. She claims she has paid Twenty-Four Thousand Three Hundred Thirty-Eight Dollars and Twenty-Six Cents ($24,338.26) to the holder and that her damages are now fixed. In her brief she suggests that we remand the case to the trial court with instruction to enter a judgment in favor of respondent in the above amount. This is a matter not properly before us and can be disposed of in the trial court.

Affirmed.

STEWART, P. J., and STEPHAN, J., concur.

      .' Section 401.029, RSMo. 1959, defines “accommodation party” as:
      “one who has signed the instrument as a maker, . . . without receiving value therefor, and for the purpose of lending his name to some other person. Such a person is liable on the instrument to a holder for value, notwithstanding such holder at the time of taking the instrument knew him to be only an accommodation party.”
      Section 401.029 was repealed by § 400.3-415, RSMo.1969. Section 400.10-101 provides, however, that transactions entered into prior to July 1, 1965, are governed by the statute in effect at the time of the transaction.


text:
    R. W. D., Respondent, v. L. J. D., Appellant.
    No. 39056.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 25, 1978.
    Motion for Rehearing and/or Transfer Denied June 8, 1978.
    Application to Transfer Denied July 24, 1978.
    Prudence L. Fink, Union, for appellant.
    Gael D. Wood, Jenny, Cole & Eckelkamp, Union, for respondent.
   CLEMENS, Presiding Judge.

The parties were divorced and the wife has appealed from that part of the decree awarding primary child custody to the husband.

The husband has moved to dismiss the wife’s appeal for failure on her brief to comply with Rules 84.04(c) and (h). Since custody of children is at issue we decline to dismiss the appeal and rule the case on the merits.

After thorough consideration, the trial court found that although both parties were fit to have custody of the children, their best interest would be served by granting primary custody to the husband, subject to liberal visitation by and temporary custody with the wife. The wife contends the award was not supported by substantial evidence and that the trial court erroneously applied the law in making the award.

We have reviewed the entire record and cases cited by the parties and find, contrary to the wife’s contention, that there was competent, substantial evidence upon which the trial court based its award and that the trial court did not erroneously apply the law. Murphy v. Carron, 536 S.W.2d 30 (Mo. 1976). Pursuant to Rule 84.16(b), V.A.M.R., an extended opinion would have no prece-dential value and we affirm.

SMITH and McMILLIAN, JJ., concur.


author: McMILLIAN, Judge.

text:
    Betty L. CONDER, Petitioner-Respondent, v. BOARD OF DIRECTORS OF WINDSOR SCHOOL, Consolidated District No. 1 of Jefferson County, Missouri, Respondent-Appellant.
    No. 39299.
    Missouri Court of Appeals, St. Louis District, Division No. 1.
    April 25, 1978.
    Motion for Rehearing and/or Transfer Denied June 8, 1978.

      Richeson, Roberts, Wegmann, Gasaway, Stewart & Schneider, P. C., Jack C. Stewart, Hillsboro, for respondent-appellant.
    Piedimonte & Cochran, Thomas D. Cochran, Joe F. Willerth, Independence, for petitioner-respondent.
   McMILLIAN, Judge.

Appellant, Board of Directors of Windsor School, Consolidated District No. 1, Jefferson County (Board) appeals from a judgment of the Jefferson County Circuit Court reversing Board’s decision to terminate the contract of respondent Betty L. Conder’s employment as a teacher in the school district.

For reversal of the court’s decision Board argues that the court erred in finding that Board’s decision was clearly against the weight of the evidence and was not supported by competent and substantial evidence on the whole record and was arbitrary, capricious, unreasonable, and an abuse of discretion. We agree and reverse and remand with instructions to the trial court to reinstate the decision of the Board.

The procedure for the termination of a tenured teacher is found in §§ 168.114, 168.116,168.118 and 168.120. Section 168.-120 provides that appeals from the decision of the Board shall be governed by Chapter 536. Section 536.140 states the scope of review in such cases, limiting inquiry to a determination of whether the action of the agency

u * * *
“(3) Is unsupported by competent and substantial evidence upon the whole record;
* * * * * *
“(6) Is arbitrary or capricious;
“(7) Involves an abuse of discretion.”

The court is not permitted under § 536.-140(5) to substitute its discretion for discretion legally vested in the agency.

In the fall of 1975 respondent began her sixth year as a third grade teacher. In 1972 the school principal found that respondent had had problems with respect to efficiency and competency. Conferences were held with respondent over the next four years. It was decided by the school principal and superintendent that the respondent’s work must improve during 1975-76 school year, if she was to remain at the school.

On September 10, 1975, the principal delivered a letter to respondent outlining instances of respondent’s failure to observe daily teaching schedules and to keep students at work. Subsequent failure to improve resulted in a written warning. On February 4,1976, the superintendent served upon respondent a notice of specific causes which would result in termination if not corrected. The superintendent indicated that this letter was the thirty day notice required by § 168.116 befóte charges of incompetency, insufficiency and insubordination could be made.

On March 17, 1976, the superintendent charged respondent with incompetency and inefficiency under § 168.116. The charges were based on deficiencies which included respondent’s disorganized course planning, poor evaluation of student grades and her uncooperative attitude. Respondent requested a hearing which was held on April 28, 1976, and May 6, 1976. Nineteen witnesses were subpoenaed for respondent and respondent was represented by counsel.

After receiving the transcript of the hearing, the Board entered findings of fact, conclusions of law and an order terminating respondent’s employment. Respondent received a copy of these findings on May 20, 1976, and filed her appeal in the circuit court of Jefferson County. On May 20, 1977, the circuit court entered judgment finding that appellant was a “tenured teacher” and that the decision of the Board was arbitrary, capricious and unreasonable, and ordered that respondent be reinstated with back pay.

The first point on appeal is that the judgment of the trial court should be affirmed because the decision of the Board of Directors to discharge respondent was against the overwhelming weight of the evidence and was not supported by competent and substantial evidence upon the whole record. The scope of judicial review of an administrative decision is limited. Merideth v. Board of Education of Rockwood R-6 School District, 513 S.W.2d 740, 745 (Mo.App.1974), expresses this limitation:

“. . . The reviewing court may only determine whether the board could reasonably have made its findings and reached its result or whether the decision was clearly contrary to the overwhelming weight of the evidence. Blunt v. Parker, 495 S.W.2d 708, 712 (Mo.App.1973). The court may not substitute its judgment on the evidence and may not set aside the board’s decision unless it is not supported by competent and substantial evidence on the whole record. In addition, the evidence must be considered in a light most favorable to the board’s decision, together with all reasonable inferences which support it. Harrod v. Board of Education, City of St. Louis, 500 S.W.2d 1, 6 (Mo. App.1973). If evidence before an administrative body would warrant either of two opposed findings, the reviewing court is bound by the administrative determination, and it is irrelevant that there is supportive evidence for the contrary finding. Hanebrink v. Parker, 506 S.W.2d 455, 458 (Mo.App.1974). Also the determination of the credibility of the witnesses is a function of the administrative tribunal. Hanebrink v. Parker, supra, 458.”

Aside from the standard enumerated in Merideth, supra, there is a strong presumption of validity in favor of the administrative decision and a reluctance by the court to interfere with such discretion. Aubuchon v. Gasconade County, R—1 Sch. Dist., 541 S.W.2d 322, 326 (Mo.App.1976). The courts may not usurp the discretionary powers of a school board. Johnson v. Branch, 364 F.2d 177, 181 (4th Cir. 1966).

Guided by the above standard, we now consider the evidence. Evidence of the board shows that on many occasions respondent did not adhere to her teaching schedule; that she failed to follow school policies; that the teacher evaluation reports for 1975-76 enumerated many areas of respondent’s teaching which were unsatisfactory or needed improvement; that she could not discipline her students and that she was uncooperative in discussing problems with superiors. As explained in Saunders v. Reorganized School Dist. No. 2 of Osage Cty., 520 S.W.2d 29, 35 (Mo.1975), “. . .no one denies the power of a School Administration to establish a curriculum and require its use; nor do any of the authorities justify the action of a teacher in rejecting in whole or in part the curriculum and calendar established by the School Administration. . . . ”

Contrary to the trial court’s findings, we find there was substantial evidence to support the board’s findings and no overwhelming evidence to the contrary. “Mere minor contradictions or confusion in the testimony of a witness do not require that the evidence be disregarded, but the credibility and meaning of it is for the trier of fact. . . .” Saunders v. Reorganized Sch. Dist. No. 2 of Osage Cty., supra, at 37. Although there was some evidence contrary to the board’s, this cannot provide a basis for reversal. The board could reasonably have concluded that respondent was inefficient and incompetent. The board’s findings and decision were supported by competent and substantial evidence and were not against the overwhelming weight of the evidence.

The second point on appeal is that the decision of the trial court to reinstate with back pay should be affirmed because the decision of the board was arbitrary, capricious and unreasonable under the evidence as a whole and amounts to an abuse of discretion. This contention has no merit. All of the procedural requirements of sections 168.116, 168.118, 168.120 have been met. As discussed above, there was substantial evidence to support the board’s decision and the decision was not against the overwhelming weight of the evidence. We, therefore, cannot find that the decision was arbitrary, capricious or an abuse of discretion. That the school board acted reasonably is evidenced by its provision of numerous opportunities for the respondent to improve herself. In March of 1975 the principal and superintendent held conferences with respondent to encourage her and suggest ways to improve her teaching. On September 10, a conference was held with the respondent wherein her attitude evidenced uncooperative behavior. On February 4, 1976, the superintendent served respondent with a 30-day notice. This letter offered assistance to respondent in correcting her deficiencies. After the warning letter, respondent again met with the principal and superintendent who made an effort to assist her. This evidence provides no ground for finding that the board acted unreasonably.

Judgment is reversed and the case remanded with directions to reinstate the decision of the board.

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

      . All statutory references, unless otherwise indicated, are to RSMo 1969.

      . In order to establish the charge of incompetency, inefficiency, the board had to demonstrate a “lack of ability, legal qualification or fitness to discharge the required duty.” See Black’s definition of incompetency in- Law Dictionary, p. 906. See also McCallister v. Priest, 422 S.W.2d 650, 657 (Mo. 1968) which states the definition of inefficiency as “The quality of being incapable of doing, or indisposed to do, the things required of an officer.”
      There was substantial evidence to support the finding that respondent was incompetent and inefficient. For example, respondent’s grading system reflected uniform grades for all students, as well as an absence of reported grades during many quarters. Her grading system was totally erratic. There is evidence showing that respondent did not adhere to her planned teaching schedule as she considered it poor teaching to “stick to a schedule” despite the school policies requiring such schedules. There is further evidence of respondent’s inability to maintain an organized classroom and organized instruction.


text:
    STATE of Missouri, Plaintiff-Respondent, v. William PERRY, Samuel Randle and James Greer, Defendants-Appellants.
    Nos. 39435 to 39438.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 25, 1978.
    Motion for Rehearing and/or Transfer Denied June 8, 1978.
    Application to Transfer Denied July 24, 1978.

      Wolff, Frankel, McConnell & Passanante, Leonard J. Frankel, Richard S. McConnell, Jr., Clayton, for defendants-appellants.
    Thomas W. Shannon, Pros. Atty., Edward Ward, Sidney Faber, Jim Sullivan, Asst. Pros. Attys., St. Louis, for plaintiff-respondent.
   McMILLIAN, Judge.

Appellants appeal from convictions entered in the circuit court of the City of St. Louis for the sale of obscene publications or films in violation of § 563.280 RSMo 1969. The trial court, sitting without a jury, found appellants guilty as charged and assessed the following fines and costs: William Perry, No. 76-3284, $150.00; Samuel Randle, No. 76-3285, $100.00; James Greer, No. 76-3286, $100.00 and No. 76-3287, $150.00.

On April 29, 1977, appellant’s hearing on his Motion to Suppress Evidence was held. At this time appellant stipulated, for the purposes of this hearing, that the material seized was obscene. Also, it was stipulated that the testimony as to the arrests of appellants and the procedures followed by the police in obtaining the obscene material in each case was the same; and therefore, testimony would only be taken in State v. Greer, No. 76-3286.

The pertinent testimony is as follows: Detective Roy Joachimstaler testified that on September 2, 1976, he entered a bookstore to investigate the possible sale of obscene material. As he entered, he noticed appellant Greer sitting behind a display counter. After this initial observation, he picked up and began to read some magazines which had been lying on the floor. All of the magazines were wrapped in a clear plastic material, and on the front and back covers were photographs which depicted a male and female involved in sexual activity.

After Detective Joachimstaler decided to buy three of the magazines, appellant Greer informed him that the total purchase price of the magazines was $22.52. Detective Joachimstaler then gave appellant a $20.00 bill and three $1.00 bills. After officer Joachimstaler received his change, he placed appellant under arrest. The officer then asked appellant Greer to return the $20.00 bill he had just exchanged. Appellant Greer complied. Detective Joachim-staler testified that after he made the arrest, he left the bookstore with all the money he had given Greer and the three magazines. According to the officer, this was standard police procedure.

On appeal appellant raises two points. First, that the transaction between the arresting officer and appellants did not constitute a sale, but rather an illegal seizure in violation of the First, Fourth and Fourteenth Amendments of the United States Constitution and § 542.281. Secondly, that the effect of the procedures followed by the arresting officer was to circumvent the statutory requirement that allegedly obscene material be seized only pursuant to a warrant properly issued by a judge of the circuit court.

As to the first point, the law of Missouri is squarely set against appellant. In State v. Flynn, 519 S.W.2d 10 (Mo.1975), the supreme court held that a sale is established where the evidence shows that the police officer asked for a publication of a certain type, that it was produced by appellant, that the officer paid the purchase price and that the book was delivered to him. Id. at 13. The supreme court held similarly in the companion cases of State v. Shouse, 519 S.W.2d 13 (Mo.1975), and State v. Richardson, 519 S.W.2d 15 (Mo.1975).

Applying this general rule to the presented fact situation, there appears a clear example of a sale rather than a search and seizure. Detective Joachimstaler entered a public bookstore, picked out three magazines, paid the purchase price, and received possession of the materials. Thus, the officer paid for and owned the magazines at the time he placed the appellant under arrest. There was no seizure.

Appellant argues that no bona fide sale occurred because the officer took back his money after the exchange. This point is. not well taken, as what has occurred at this point is simply a police officer confiscating evidence of the crime. If not allowed to follow this procedure, how would the state be able to prove up the sale at trial? Appellant fails as to this point.

Next, appellant argues that the effect of the police procedures in making the arrests circumvents the statutory requirements of § 542.281, that allegedly obscene material be seized only pursuant to a search warrant properly issued by a judge of the circuit court.

Section 542.281 sets up a specific search warrant procedure for the seizure of allegedly obscene material. Here, however, it has been determined that a sale took place rather than a seizure, therefore, the procedures set out in § 542.281 are inapplicable. Generally, the requirement that a police officer obtain a warrant prior to conducting a search and seizure is meant to protect the individual’s privacy by assuring that searches and seizures are reasonable. Matter of Duncan, 541 S.W.2d 564, 570 (Mo.1976). Here, there are no interests in individual privacy involved as the magazines were being displayed to the public in a commercial setting. Therefore, there is no circumvention of applicable statutory search warrant requirements.

The judgments of the trial court are affirmed.

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

      . All statutory references are to RSMo 1969.