author: SMITH, Judge.

text:
    Clarence BREELAND, Appellant, v. STATE of Missouri, Respondent.
    No. 39171.
    Missouri Court of Appeals, St. Louis District, Division One.
    June 13, 1978.
    Leonard W. Buckley, Jr., St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Stanley Robinson, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., John D. Chancellor, Asst. Circuit Atty., St. Louis, for respondent.
   SMITH, Judge.

Movant appeals from the action of the trial court in denying without an evidentia-ry hearing movant’s motion to set aside judgment and sentence under Rule 27.26. The judgment and sentences attacked resulted from pleas of guilty entered in June 1972 to a charge of murder in the second degree and a charge of robbery in the first degree. A sentence of 20 years imprisonment was assessed on each charge, to run concurrently.

In his motion Breeland alleges involuntariness of the pleas of guilty because of “ineffective representation of counsel,” “involuntary coerced plea of guilty” and “unlawful arrest and interrogation.” In order to be entitled to an evidentiary hearing, movant must plead facts, not conclusions, which, if true, would entitle him to relief and must show these factual allegations are not refuted by the trial record (or in this case the guilty plea hearing record). Smith v. State, 513 S.W.2d 407 (Mo.banc 1974). We have carefully reviewed the movant’s motion, the transcript of the guilty plea hearing, and the findings and conclusions of the trial court and find no factual allegations which would entitle movant to relief which are not refuted by the record at the guilty plea hearing. We find, therefore, that the judgment of the trial court is based upon findings of fact which are not clearly erroneous. We have also determined that a full opinion would have no precedential value and so'affirm pursuant to the provisions of Rule 84.16.

Judgment affirmed.

CLEMENS, P. J., and McMILLIAN, J., concur.


source: Caselaw Access Project

author: McMillian, Judge.

license: Public Domain

text:
    William DAVIS, Plaintiff-Appellant, v. Billy J. HOLDER, Defendant-Respondent.
    No. 39214.
    Missouri Court of Appeals, St. Louis District, Division One.
    June 20, 1978.
    Cundiff, Turken & Londoff, Michael T. Londoff, St. Charles, for plaintiff-appellant.
    Niedner, Moerschel, Ahlheim & Bodeux, Rollin J. Moerschel, St. Charles, for defendant-respondent.
   McMillian, Judge.

Appellant, Willaim Davis, appeals from the order of the circuit court of St. Charles County granting respondent, Billy Holder’s motion to dismiss and dismissing appellant’s petition.

On May 15, 1970, appellant, plaintiff below, along with plaintiffs, Joanne Davis, William and Judy Wegel and Cullie and Mary Collins, filed a petition (suit # 1) against respondents, defendants below, Billy and Linda Holder, along with Lewis and Willie Mae Buschard and Richard Buschard, requesting a mandatory injunction be issued to remove the obstruction of a bridge constructed and maintained by defendants which impeded the flow of water and caused damage to plaintiff’s property. By order of court, this suit was placed on the inactive docket on May 31, 1972, and was dismissed by court order on September 25, 1973. On March 6, 1974, appellant filed a petition for actual and exemplary damages against respondent (suit # 2) for damages sustained to appellant’s property as a result of the construction of the bridge. On October 2, 1975, appellant’s petition was dismissed by appellant without prejudice. On September 16, 1976, appellant again filed a petition for actual and exemplary damages (suit # 3). Respondent filed a motion to dismiss this suit stating that appellant’s petition was barred by Missouri Supreme Court Rule 67.01. In support of this motion, the defendant stated that on May 15, 1970, in suit number 1, the appellant asserted the same claim as herein asserted and the suit was dismissed by this court on September 25, 1973; that on March 6, in suit number 2, appellant asserted same as herein asserted and this suit was dismissed by appellant. Defendant further stated that neither of the prior dismissals was by stipulation of the parties or court order.

On February 25, 1977, respondent’s motion to dismiss on appellant's petition was heard and granted. Appellant appeals.

Respondent maintains that Missouri Supreme Court Rule 67.01 applies. This rule states that a civil action may be dismissed by the plaintiff without prejudice and without order of court any time prior to the introduction of evidence. A party who once so dismisses an action and thereafter files another shall be allowed to dismiss the second without prejudice only (1) upon filing a stipulation to that effect signed by the opposing party, or (2) on order of the court made on a motion in which the ground for said dismissal shall be set forth. In suit number 1, the suit was dismissed by order of court, not by the plaintiff. The second suit filed was the only suit to be dismissed by the plaintiff and therefore rule 67.01 is inapplicable. The trial court erred in dismissing appellant’s third suit in accordance with Rule 67.01 because it was the first suit voluntarily dismissed by the appellant.

Accordingly, judgment is reversed.

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

      . The only question which must be decided is the effect of the lower court’s dismissal of suit number one on appellant’s later suits. At oral argument, however, counsel for respondent conceded that the court’s dismissal was without prejudice. If counsel had not solved this problem, Mo.Sup.Ct. Rule 67.03 would provide the solution. This rule states that an involuntary dismissal other than one for lack of jurisdiction, for prematurity of action, for improper venue, or for failure to substitute a party for a decedent shall be with prejudice unless the court in its order for dismissal shall otherwise specify. This rule however, applies only to dismissal on motion, either by the court or the plaintiff, after notice and an opportunity to be heard. Bindley v. Metropolitan Life Ins. Co., 358 Mo. 31, 213 S.W.2d 387 (1948). The facts in the Bindley case were similar to the facts at hand. The court in dismissing the petition for want of prosecution held:
      “Notice and a hearing, or an opportunity to be heard, have long been considered essential to due process, to a decision on the merits of a cause and to the deprivation of rights and property.” (213 S.W.2d at 391)

        Gladden v. Kansas City, 411 S.W.2d 228, 229 (Mo. 1967); Krieber v. Kreiber, 420 S.W.2d 376, 379 (Mo. 1967). The court further stated that this holding does not require a motion by the defendant where the parties are before the court or where the plaintiff is in default for failure to appear for trial. Otherwise, a showing of notice to the plaintiff or his counsel of the proposed court action and an opportunity to be heard is required before dismissal for failure to prosecute shall be with prejudice and operate as an adjudication of the merits, even though the order of dismissal fails to state that the dismissal is without prejudice. 213 S.W.2d at 391. The first dismissal for failure to prosecute is not a bar to the appellant’s subsequent action for damages. Under Rule 67.03, the appellant is permitted to voluntarily dismiss his action for damages and refile at a later time.


author: BILLINGS, Chief Judge.

text:
    Marion Fogel BARNARD, Plaintiff-Appellant, v. Lonnie L. BARNARD and Julia M. Barnard, Defendants-Respondents. Marion Fogel BARNARD, Plaintiff-Respondent, v. Lonnie L. BARNARD and Julia M. Barnard, Defendants-Appellants.
    Nos. 10318, 10319.
    Missouri Court of Appeals, Springfield District.
    June 30, 1978.

      Eugene J. Feldhausen, Kansas City, Mo., Harold H. Fisher, Newark, N. J., for plaintiff-appellant-respondent.
    Theodore L. Johnson, III, C. Ronald Baird, Lowther, Johnson, Franks & Baird, Springfield, Mo., for defendants-appellants-respondents.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   BILLINGS, Chief Judge.

Suit to set aside alleged fraudulent conveyances. Defendants counterclaimed for abuse of process and slander of title. Trial court granted defendants’ oral motion for directed verdict at the close of plaintiff’s evidence and also dismissed defendants’ counterclaims. Both parties appealed. We reverse and remand.

Plaintiff Marion Fogel Barnard and defendant Lonnie Barnard were formerly husband and wife and prior to his obtaining a Nevada divorce in 1969 they lived in New Jersey with their three children. The Nevada decree was entered April 14,1969, and Lonnie was ordered to pay $250 monthly as support for the children. He returned to New Jersey and voluntarily entered into a property settlement with Marion on May 15, 1969, which, inter alia, provided $300 weekly support for her and $60 a week for each of their three children.

On May 26, 1969, Lonnie and defendant Julia were married. They resided in New Jersey until August, 1973, at which time they moved to Lebanon, Missouri.

Child support payments ceased for Lonnie’s oldest son before that boy was 21 and for his 16-year-old daughter in January of 1972, when Lonnie decided these two children were “emancipated.” In 1973 Lonnie instituted a suit in New Jersey against his former wife seeking to reduce payments under the agreement. Marion sought an increase in the amount of payments. The court denied modification of, but granted Marion specific performance of the agreement. This judgment became final January 2,1974, shortly after Lonnie had ceased making any payments under the agreement.

Marion registered the New Jersey judgment in Laclede County on May 8,1974, and alleged Lonnie was in arrears. Execution was returned nulla bona. Marion then brought this suit, claiming Lonnie had voluntarily transferred his property to his present wife, Julia, that he alone had provided the purchase money for certain properties, and he had caused the title thereto be held in tenancy by the entirety. Marion sought a decree that Lonnie be declared the sole owner of defendants’ properties and subject to the payment of his indebtedness to her. Defendants counterclaimed, contending plaintiff’s suit constituted an abuse of process and the filing of a lis pendens amounted to slander of their title.

At the time of the Nevada divorce and prior to his moving to Missouri, Lonnie had substantial holdings of money, stocks and other property in his name. His after income tax income for 1969 was more than $525,000, which resulted from selling stock in his own company held in his name. In 1971 he earned $78,000 as a consultant and received $50,000 from the liquidation of his Florida corporation. He valued his assets in 1972 at $308,000 which included bank deposits, an airplane, two cars, two motorcycles, corporate stock and a house. In 1973 his assets were valued at $281,950 and were comprised basically of the same assets he had in 1972 except he sold his house for $168,000. He purchased another house for $92,000, spent some money improving this house, and deposited the remaining moneys.

In Missouri, all property was held jointly by defendants. This included an 820 acre ranch, cattle, farming equipment, the two cars and two motorcycles, a residence in Lebanon, bank deposits, and the corporate stocks. Prior to trial, in sworn testimony, Lonnie acknowledged he was the source of moneys held on deposit in his and Julia’s names and that proceeds from the sale of his airplane went to defendants jointly.

A suit to set aside conveyances in fraud of creditors is an equitable action [Castorina v. Herrmann, 340 Mo. 1026, 104 S.W.2d 297 (1937)] and a motion for directed verdict has no place in an equity case. Madget v. Jenkins, 461 S.W.2d 768 (Mo.1970); Moser v. Williams, 443 S.W.2d 212 (Mo.App.1969). Such a motion is in the nature of a motion to dismiss at the close of plaintiff’s evidence, authorized by Rule 67.-02,- V.A.M.R., Moser v. Williams, supra.

Since the court dismissed plaintiff’s cause of action at the close of her evidence, the question is whether her evidence made a prima facie case of fraudulent conveyances intended to hinder, delay or defraud creditors. Kinsella v. Gibson, 307 S.W.2d 491 (Mo.1957).

Every conveyance made with the intent to hinder, delay or defraud creditors is void as to those creditors. § 428.020 RSMo 1969. To establish a cause of action, the creditor must show a conveyance by defendant debtor made for the purpose of putting his assets beyond the reach of the creditor. Voluntary assignments from husband to wife which are prejudicial to his creditors, are presumptively fraudulent and void and viewed with suspicion. Bank of New Cambria v. Briggs, 361 Mo. 723, 236 S.W.2d 289 (1951); Cooper v. Freer, 385 S.W.2d 340 (Mo.App.1964). “[W]hen a creditor presents evidence of such a [voluntary] conveyance by a debtor, accompanied by other badges of fraud, the burden of producing evidence to establish the good faith of the transaction shifts to the grantee or donee.” Harrison v. Harrison, 339 S.W.2d 509, 516 (Mo.App.1960).

This appeal concerns not only plaintiff’s status as a judgment creditor under the New Jersey judgment but also deals with her rights under the property-support agreement and the Nevada decree. “Creditor” commonly signifies one who holds some contractual obligation against another; one who has a “ . . . right to require the fulfillment of an obligation or contract ..” Commerce Trust Co. v. Farmers’ Exchange Bank, 332 Mo. 979, 61 S.W.2d 928, 931 (Mo. banc 1933); Black’s Law Dictionary 441 (4th ed. 1968). A judgment awarding child support payments gives a wife rights as a creditor. Biondo v. Biondo, 179 S.W.2d 734 (Mo.1944). Plaintiff’s rights as a creditor of her former husband stem from the settlement agreement which obligated him to make weekly support payments and the Nevada divorce decree.

In her petition plaintiff alleged that subsequent to entering into the settlement and support agreement, her husband began transferring all of his New Jersey property to his present wife and upon their move to Missouri titled all the property in their joint names. Rather than a single conveyance, a series of transfers is presented which culminated in the purchase of the Missouri property. This is a situation in which a divorced man, with numerous assets, creates a tenancy by the entirety in favor of himself and his second wife. The result is the insolvency of the husband, delaying and hindering his creditor, ex-wife. See, Pauling v. Pauling, 159 F.2d 531 (8th Cir. 1947) cert. denied, 331 U.S. 808, 67 S.Ct. 1192, 91 L.Ed. 1829 (1947).

Plaintiff had the burden of proof as to the fraudulent nature of the conveyances. Bank of New Cambria v. Briggs, supra; Chesley v. Krotchen, 437 S.W.2d 680 (Mo.App.1969). A voluntary conveyance, one lacking valuable consideration, raises a presumption of fraud as to existing creditors. Vaughn v. Christian, 472 S.W.2d 337 (Mo.1971). Such transfers between husband and wife are particularly suspicious, and “their good faith must be so clearly shown that there is no reasonable doubt as to the honesty of the transaction.” Cooper v. Freer, supra; Harrison v. Harrison, 339 S.W.2d 509 (Mo.App.1960). A debtor’s examination received without objection shows defendant Lonnie Barnard was the source of funds deposited in the joint checking account of defendants and that the proceeds from the sale of his airplane went to defendants jointly. From the evidence, Julia Barnard made no contribution to these assets.

Fraud, being difficult to establish by direct proof, may also be shown by circumstantial evidence. There are a number of indicia of fraud which together create an inference of improper motive. These include a conveyance to a spouse or near relative; a conveyance in anticipation of a suit; inadequacy of consideration; transfer of all or nearly all of the debtor’s property; insolvency; retention of possession by the debtor. Allison v. Mildred, 307 S.W.2d 447 (Mo.1957); Morris v. Holland, 529 S.W.2d 948 (Mo.App.1975). Several of these indicia are apparent in this case. The creation of the tenancy by the entirety in favor of Lonnie and his present wife resulted in a transfer of all of his property. This rendered him insolvent, while leaving him in possession of the property. While standing alone none of these indicia of fraud is sufficient, together they give rise to a strong inference of fraud. Morris v. Holland, supra. As Lamm, J., had occasion to say in Cole v. Cole, 231 Mo. 236, 132 S.W. 734 (1910):

“Fraud is easy to accomplish and hard to prove. It is a sound proposition that, as the marital relation affords a convenient cover for fraudulent property transactions between husband and wife, courts, where fraud is charged as the gist of the action, will closely eye such transactions (when in conflict with the claims of creditors) to see they do not hide and consummate fraud . . . 132 S.W. at 740.

We entertain no doubt from the record in this case that plaintiff’s evidence established a cause of action for fraudulent conveyance and the trial court fell into error in granting defendants’ motion at the close of plaintiff’s case. On retrial, plaintiff will have the opportunity to more fully develop and definitively trace the assets Lonnie formerly held in his own name.

We turn now to defendants’ appeal that the court erred in dismissing their counterclaims for failing to state a cause of action.

Shorn of conclusions, defendants’ counterclaims allege plaintiff was guilty of abuse of process and slander of title by filing her suit. In order to maintain a cause of action for abuse of process facts demonstrating (1) an illegal, improper use of the process that is not warranted or authorized (2) an ulterior motive in exercising such process and (3) damage, must be pleaded and proved. National Motor Club of Missouri, Inc. v. Noe, 475 S.W.2d 16 (Mo.1972); Moffett v. Commerce Trust Co., 283 S.W.2d 591 (Mo.1955); Jenkins v. Andrews, 526 S.W.2d 369 (Mo.App.1975). The test is whether the process has been used to accomplish some unlawful end, or to compel defendant to do some collateral thing which he could not be compelled to do legally. Moffett v. Commerce Trust Co., supra; Jenkins v. Andrews, supra. No cause of action arises where the process is employed to perform a function intended by law. There must be a use which is beyond the scope of the process and therefore improper.

Here, plaintiff sought to establish that conveyances between defendants were fraudulent as to her, that the property involved should be declared to belong solely to her former husband and therefore subject to the payment of his indebtedness to her. This was neither unlawful nor beyond the scope of the process employed. Equally without merit is defendants’ count for alleged slander of title. In filing her suit for fraudulent conveyances, plaintiff was authorized and mandated under § 527.260, RSMo 1969, to file a lis pendens against real estate which was liable to be affected by her equitable suit.

We agree with the trial court that defendants’ counterclaims failed to state causes of action against plaintiff and should be dismissed.

The judgment of the trial court is reversed and the cause remanded for trial on plaintiff’s petition. Upon the court’s determination of the issues therein, the judgment entered thereon should include the dismissal of defendants’ counterclaims.

All concur.

      . Plaintiff testified that defendant Lonnie told her in November, 1973, his move to Missouri should prove to her that this was his way of getting her off his back and “you come and get me, big girl, come all the way to Missouri.” She also related that Lonnie had advised her that under Missouri law property held as tenancy by the entirety could not be levied upon.

      . Prior to the presentment of evidence the plaintiff requested the trial court to make and enter findings of fact and conclusion of law. Rule 73.01(l)(b), V.A.M.R., provides: “If any party so requests before final submission of the case, the court shall dictate to the court reporter, or prepare and file, a brief opinion containing a statement of the grounds for its decision . . .; and may, or if requested by counsel, shall, include its findings on such controverted fact issues as have been specified by counsel.” (Our emphasis)


author: HOGAN, Judge.

text:
    In re the MARRIAGE OF Francis Louise and Glenn KAISER. Francis Louise KAISER, Petitioner-Respondent, v. Glenn KAISER, Respondent-Appellant.
    No. 10837.
    Missouri Court of Appeals, Springfield District.
    June 30, 1978.

      James R. Reynolds, Ford, Ford, Crow & Reynolds, Kennett, for respondent-appellant.
    Charles Sampson Williams, Jr., Cable, Seabaugh & Williams, Kennett, for petitioner-respondent.
    Before BILLINGS, C. J., and HOGAN and TITUS, JJ.
   HOGAN, Judge.

This is a dissolution of marriage proceeding. Respondent Glenn Kaiser appeals from a finding that there was no marital property, as that term is defined by § 452.-330(2), RSMo Supp.1975.

The parties were married December 23, 1955. During their marriage they acquired a tract of real property in the City of Kennett. The tract is specifically described but is generally referred to as the “home-place.” In December 1974, the parties filed a joint petition for the dissolution of their marriage in the Circuit Court of Dunklin County. Contemporaneously, they filed a property settlement agreement which in terms provided that the respondent would, and by apt words of conveyance did, transfer his interest in the homeplace to the petitioner, Francis Louise Kaiser. The homeplace was then subject to a debt and encumbrance in the amount of $3,243.55. The petitioner assumed the debt.

The parties lived separately and apart for approximately one year. They were then remarried. This second dissolution proceeding was begun on August 4,1977. Petitioner alleged the second marriage was irretrievably broken and that there was no marital property. The respondent admitted irretrievable breakdown but alleged there was marital property and prayed equitable apportionment of that property.

The trial court heard evidence, but extensive recountal of that evidence is unnecessary. The only real issue developed on trial was whether or not the homeplace was marital property. The respondent offered no evidence that the property settlement made at the time of the first dissolution was procured by fraud, collusion or compulsion, or that it was unconscionable. The record permits no conclusion other than that the property settlement agreement had been fully executed at the time this action was tried. The respondent testified positively that he owned no real property at the time of the second marriage. During the trial, however, the court excluded three offers of proof made by the respondent. These were: (1) an offer to prove that the respondent had agreed to convey the homeplace only because he wanted to avoid a contest and because he wanted his child (a son) to have a place to live; (2) an offer of proof that “ . . .it was [Francis Louise’s] idea that they get back together and marry”; and (3) an offer to prove that upon remarriage, the parties “. . . agreed that [Glenn] would not have to contribute to the monthly house payment.” The focal issue, as indicated, is whether the home-place is marital property, but the assignments of error on appeal are directed solely to the trial court’s exclusion of the respondent’s offers of proof.

In support of Lis assignments of error, the respondent cites and relies heavily upon those cases which hold or indicate that the conduct of a husband and wife with respect to property may evidence a clear intention that separate property be transmuted into property of the marital community. Davis v. Davis, 544 S.W.2d 259, 264[1] (Mo.App.1976); Stark v. Stark, 539 S.W.2d 779, 782 (Mo.App.1976); Conrad v. Bowers, 533 S.W.2d 614, 621, n. 10 (Mo.App.1975), and see, generally, 2 American Law of Property § 7.27 (A. J. Casner ed. 1952). The question then, is whether the trial court excluded any evidence tending to establish a clear intention on the part of both parties that the homeplace be converted to marital property.

The respondent’s contention that he should have been allowed to go behind the property settlement agreement and contradict his solemn recital that it was voluntarily executed and intended as a full and complete adjustment of all property rights ignores the parol evidence rule. Cf. Hampton v. Hampton, 536 S.W.2d 324, 326[5, 6] (Mo.App.1976). Further, his argument that he should have been allowed to prove, as he puts it in his brief, that “it was [petitioner’s] idea they remarry and again occupy the said homeplace as husband and wife” assumes that remarriage after absolute divorce is in some manner comparable to reconciliation after separation and that remarriage after divorce somehow restores the marital community. That assumption is wholly unsound. Travis v. Travis, 227 Ga. 406, 181 S.E.2d 61, 63[2], 52 A.L.R.3d 1329, 1332[2] (1971); In re Mallory’s Estate, 300 Pa. 217, 150 A. 606, 607[2] (1930); McDaniel v. Thompson, 195 S.W.2d 202, 203-204[3, 4] (Tex.Civ.App.1946); 41 C.J.S. Husband and Wife § 263, p. 745 (1944). The first two offers of proof had no tendency whatever to establish a clear intention to transmute the homeplace into marital property upon remarriage.

The third offer of proof was also properly refused. It was clearly held in Cain v. Cain, 536 S.W.2d 866, 871 (Mo.App.1976), that the use of community funds to reduce or discharge an encumbrance on real property does not establish its status as separate or marital property. The parties’ agreement that the respondent would not be obliged to “contribute to the monthly house payment” was therefore wholly irrelevant to the issue of transmutation. Accordingly, the decree is in all respects affirmed.

All of the Judges concur.


author: FOREST W. HANNA, Special Judge.

text:
    FIDELITY STATE BANK AND TRUST COMPANY, Plaintiff-Appellant, v. T. H. GIBSON, Defendant-Respondent.
    No. 28874.
    Missouri Court of Appeals, Kansas City District, Division One.
    July 3, 1978.
    J. R. Fritz, Lamm, Barnett, Crawford & Fritz, Sedaba, for plaintiff-appellant.
    James T. Buckley, Brown, Buckley & Cassing, Sedaba, for defendant-respondent.
    Before SHANGLER, P. J., WASSER-STROM, J., and CLARK and HANNA, Special Judges.
   FOREST W. HANNA, Special Judge.

The single issue for resolution is the trial court’s refusal to allow in evidence a note executed by William 0. Lemons on June 25, 1971, to the plaintiff bank in the amount of $29,198.37. More specifically, we must determine whether that particular note should have been pleaded by the plaintiff as “special damages.”

On April 21,1971, William 0. Lemons and his partner, Charles Allee, went to the plaintiff bank in Topeka, Kansas and obtained a loan of $125,000 for their partnership in order to finance cattle purchases. The bank gave them a pad of bill of sale drafts and on the 26th of April one of those bib of sale drafts was drawn by Lemons on the plaintiff bank in the amount of $12,-661.60 payable to the defendant Gibson. Gibson deposited the draft in his account and the plaintiff bank paid the draft. The draft describes sixty-eight head of Hereford steers sold by defendant Gibson. After the partnership had finished buying cattle, the partners returned to the bank and on the 24th of June, 1975, signed a promissory note in the amount of $107,641.88. They also signed a security agreement on the same date describing 702 head of cattle securing the note and other debts.

Gibson never delivered the sixty-eight steers to Lemons, a fact that resulted in his conviction in the United States District Court for the Western District of Missouri. Approximately a month after the signing of the note and security agreement the plaintiff bank became aware of the shortage of the cattle security. Under the security agreement the bank foreclosed, sold the cattle, leaving a net excess of proceeds over the balance due of $7,298.34. Half of that excess was paid to Allee and the other half was applied to another and separate debt incurred by Lemons at the plaintiff bank. The security agreement signed by Lemons and Allee on the 24th of June had a provision that the security (which included sixty-eight steers) would secure not only the $107,641.88 note but also provided “ . . . and in addition . . . any and all other amounts as shall in any manner be due from debtor or secured party . .” The day after the $107,641.88 note and security agreement were executed between the bank and Lemons and Allee, Lemons went to the bank and executed a promissory note in his own name in the amount of $29,198.37. This transaction is separate and distinct from the one the day before. It is this note that the trial judge refused to allow in evidence.

Pursuant to the provisions of the original security agreement, plaintiff claims that the sixty-eight head of cattle not only secured the original loan of $107,641.88 but the subsequent note executed by Lemons separately in the amount of $29,198.37. Plaintiff claims that this separate debt of Lemons should have been admitted to show damages to the bank because of the fraud Gibson committed when he deprived the bank of sixty-eight head of cattle. The plaintiff cites the Uniform Commercial Code, Section 400.9-204(5) which provides “ . . . obligations covered by a security agreement may include future advances.”

The defendant does not challenge the relevancy of the $29,198.37 note, but did repeatedly object to its admission in evidence because it was outside the scope of the pleadings and was a claim for special damages as opposed to general damages.

This case was tried on plaintiff’s amended petition which alleges that the plaintiff bank and the partners Allee and Lemons entered into an agreement to purchase cattle and that the partners were issued bill of sale drafts, one of which was payable to defendant Gibson in the amount of $12,-661.60 and that it was secured by sixty-eight Hereford steers and that Gibson received that money but did not deliver the steers as required. It further alleges that Lemons had signed a security agreement by which the cattle purchased would become security for the payment of certain sums of money which included the draft in question, that the plaintiff discovered the loss, sold the cattle and because of the wrong committed by the defendant Gibson the plaintiff was damaged in the sum of $12,661.60. The bill of sale draft was attached to the petition and made a part of it. Nowhere in the amended petition is there any reference, directly or indirectly, to the $29,198.37 note executed by Lemons in his own name to the plaintiff bank on the 25th of June. There is nothing in the amended petition indicating that Gibson’s fraudulent actions caused the bank to lose security on another, separate transaction that it had with Lemons.

There was not a hint of this damage until midway through the trial when the plaintiff offered the testimony.

The Court held a hearing outside of the jury and sustained the defendant’s objection. At no time did plaintiff make any motion to amend the petition to include this element of damage.

Supreme Court Rule 55.19 requires that “when items of special damage are claimed, they shall be specifically stated.” This Rule states the well-settled principle of law that where the plaintiff intends to make a claim for special damages by which is meant damages of such a character as would not of necessity have followed the particular injury, they must be specially pleaded in the petition in order that the defendant may have notice thereof to meet the issue upon the trial. Simon v. S. S. Kresge Co., 103 S.W.2d 523 (Mo.App.1937); 22 Am.Jur.2d, Damages, § 272. Those damages which the law would impute as natural, necessary and the logical consequence, of defendant’s wrongful act are general in nature and do not need to be specifically pleaded. They are recoverable under a claim of general damages. Johnson v. Flex-O-Lite Mfg. Corp., 314 S.W.2d 75 (Mo.1958).

The defendant had the right to have notice of this loss and be prepared to meet it. It makes no difference whether the damages are the result of a breach of contract or tort. Any attempt to introduce evidence of special damages when only a general averment is made is a fatal variance between the pleadings and the proof and not admissible. W. C. Hardesty Co. v. Schaefer, 139 S.W.2d 1031, 1035 (Mo.App.1940).

In the instant case it was incumbent upon the plaintiff to plead this damage because it was not a loss necessarily resulting from defendant’s wrongful conduct. Coleman v. Ziegler, 226 S.W.2d 388 (Mo.App.1950); Parsons Const. Co. v. Missouri Public Service Co., 425 S.W.2d 166 (Mo.1968).

The loss of security to the plaintiff bank on the transaction as evidenced by the offered testimony may very well have been a logical loss but not necessarily one to be expected. We do not say that plaintiff would not have been entitled to have the jury consider that loss, only that they should not have been permitted to have that evidence without it having been alleged in the petition as an element of damage. Therefore, the judgment of the court entered is hereby affirmed.

All concur.


author: PER CURIAM.

text:
    H. Gayle RUSSELL and Carolyn K. Russell, Plaintiffs-Respondents, v. Cloyd E. CARTER and Erma R. Carter, Defendants-Appellants.
    No. KCD 29063.
    Missouri Court of Appeals, Kansas City District.
    July 3, 1978.
    Harry L. Porter, Marceline, for defendants-appellants.
    Michael L. Midyett, Midyett & Shea, Keytesville, for plaintiffs-respondents.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   PER CURIAM.

The Circuit Court of Chariton County (sitting without a jury) entered judgment awarding plaintiffs (respondents) specific performance of an “option contract” for the conveyance of real property in Chariton County owned by defendants (appellants).

Appellants’ contentions on appeal are threefold: that the trial court erred (1) in ordering appellants to convey to respondents real property whose legal description differed from the legal description contained in the “option contract”, (2) in ordering specific performance of the “option contract” in favor of respondents before tender of the purchase price to appellants, and (3) in failing to rescind the “option contract” because of “material mutual mistake”.

As to appellants’ first point, the trial court properly concluded that the description of the real property contained in the “option contract” afforded the means whereby an exact legal description of the real property which was the subject of the “option contract” could “be made perfect and certain by' parol evidence.” Black v. Crowthe; 74 Mo.App. 480, 483 (1898). See also: Blankenship v. Porter, 479 S.W.2d 409, 412-13 (Mo.1972); Herzog v. Ross, 355 Mo. 406, 196 S.W.2d 268, 270 (banc 1946), citing with approval Black v. Crowther, supra; and Ranck v. Wickwire, 255 Mo. 42, 164 S.W. 460, 465 (1914). Unobjected to parol evidence perfecting and making certain the description of the real property contained in the “option contract” was presented to the trial court and relied upon by it as evidenced by the legal description set forth in the judgment awarding respondents specific performance.

The gravamen of appellants’ second point is that the trial court erred in awarding specific performance before the purchase price had been tendered by respondents to appellants. The judgment entered by the trial court, among other things, specifically decreed that “certain obligations and conditions” imposed upon appellants by the “option contract” were to be met and performed by them before respondents were obligated to pay the purchase price. The trial court properly concluded, in view of the terms of the “option contract”, that tender of the purchase price by respondents to appellants was not a condition precedent to the judgment for specific performance in favor of respondents. Gulf Oil Corporation v. Ferguson, 509 S.W.2d 1, 5 (Mo.1974).

Appellants’ third and final point, that the trial court erred in not rescinding the “option contract” because of “material mutual mistake”, bespeaks of relief which was never raised by appellants’ pleadings nor otherwise requested at the trial court level. Relief which has never been sought or requested at the trial court level will not be countenanced or entertained for the first time on appeal. Howard County v. Snell, 349 Mo. 386, 161 S.W.2d 238, 243 (1942), rev’d on other grounds; and Kelley v. Schnebelen, 545 S.W.2d 332, 337 (Mo.App.1977).

' Having concluded that no error of law appears, that the judgment of the trial court is supported by substantial evidence, and that it is not against the weight of the evidence, the judgment entered by the trial court is affirmed. Murphy v. Carrón, 536 S.W.2d 30, 32 (Mo. banc 1976).

All concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    George W. MARSH, Plaintiff, v. ALLRIGHT MISSOURI, INC., Helen Deane Sullivan, Deane Maitland Anderson, and the First National Bank of Kansas City, Missouri, Trustee Under the Will of Oliver H. Dean, Deceased, Appellants, Engelhaupt Construction Corporation, a/k/a Engelhaupt Construction Company, and Jim Engelhaupt, Defendants, and Belger Cartage Service, Inc., Respondent.
    No. KCD 29278.
    Missouri Court of Appeals, Kansas City District.
    July 3, 1978.

      William J. Koenigsdorf, Koenigsdorf, Ka-plan, Kraft, Pox & Kusnetzky, Kansas City, for appellants.
    Ronald S. Weiss, Berman, DeLeve, Ku-chan & Chapman, Kansas City, for respondent.
    Before WELBORN, Special Judge, Presiding, PRITCHARD, J., and HIGGINS, Special Judge.
   ROBERT R. WELBORN, Special Judge.

Action to recover for services and equipment claimed to have been furnished in performance of contract for demolition of buildings and to establish mechanic’s lien on real property involved. Trial court awarded Belger Cartage Service, Inc., judgment for $6,525.51 against demolition contractor and made judgment a special mechanic’s lien upon real estate. Owners and lessee of realty appeal.

Allright Missouri, Inc., was the owner or lessee of a parcel of real estate known as 1112-1120 Walnut, in Kansas City. Multi-storied buildings, known as the Kline-Holiday Shoe Buildings, had been built on the property. In December, 1971, Allright entered into a contract with Engelhaupt Construction Company, Inc., for demolition of the buildings preparatory to use of the land for a parking lot.

Engelhaupt began work on the project. On Sunday, February 20, 1972, eight floors of the center section of one building collapsed, burying two workmen on the job. A person identified as “Engelhaupt” called Mr. John Belger of Belger Cartage Service, Inc., and told Belger of the accident and of the need for men and equipment to rescue the trapped workers. Belger immediately dispatched a crane to the site, together with operators. Subsequently, the first crane, a 35-ton machine, was found inadequate and a second Belger crane, a 50-ton machine, was taken off another work site and dispatched to the scene. The Belger equipment, manned by Belger employees, was in continuous service from Sunday afternoon until around twelve noon, Wednesday, February 23, when the bodies of the workers were uncovered. The Belger cranes were used with & clam shell to dig and assist in the removal of rubble and debris. A wrecking ball was also used to demolish portions of the walls and roofs of the building.

After the bodies had been recovered, the Belger equipment left the job. Belger submitted a bill to Engelhaupt for $6,525.51 for the rental of equipment and service of employees between February 20 and February 23, 1972. The bill was not paid and Belger gave notice of intention to file a mechanic’s lien. Belger filed its lien statement and brought its action to recover the amount claimed owed by Engelhaupt and to establish its mechanic’s lien.

The trial court made findings of fact and conclusions of law in which it concluded that the equipment and labor shown in Bel-ger’s Mechanic’s Lien Statement “were used in the demolition and remodeling of the real estate * * The court found:

“10. The equipment and labor used by Belger in rescuing the buried workmen were a necessary part of the entire demolition and transformation to a parking facility as contemplated in the contract between Allright and Engelhaupt Construction Company, Inc.”

Judgment was entered against Engel-haupt for $6,525.51, plus interest, and the judgment was made a special mechanic’s lien against the property. The owners and lessee appeal.

Section 429.015(3), RSMo 1975 Supp., provides in part:

“3. Every mechanic or other person who shall do or perform any work or labor upon, or furnish any material, fixtures, engine, boiler or machinery, for the purpose of demolishing or razing a building or structure under or by virtue of any contract with the owner or proprietor thereof, or his agent, trustee, contractor or subcontractor, upon complying with the provisions of sections 429.010 to 429.340, shall have for his work or labor done, or materials, fixtures, engine, boiler or machinery furnished, a lien upon the land belonging to such owner or proprietor on which the same are situated, to the extent of one acre.”

Appellants contend that the trial court erred in finding that Belger was entitled to assert a mechanic’s lien because humanitarian rescue efforts are not cognizable under the above statute and the weight of the evidence clearly showed that Belger’s efforts were for humanitarian rescue effort and were not furnished for demolishing or razing the building. This argument, based upon the weight of the evidence necessarily assumes some evidentiary support for the trial court’s findings and invokes the admonition found in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976): “Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or judgment is wrong.” 536 S.W.2d 32.

There is clear evidentiary support for the trial court’s findings. Belger employees testified that the crane was used with a wrecking ball to break through the roof of a building that was to come down. The clam shell was used to remove debris and stock pile it. Vincent Bahm, the first supervisor for Engelhaupt on the job, testified that the debris had to be dug out of the sub-basement to “make sure there was no cavities in the basement.”

As appellants assert, Belger came to the job originally in response to a call for rescue assistance. However, the basic job contracted for by Allright was for the demolition of the building. Belger men and machinery contributed to the performance of the contract by demolishing portions of the structure and by removing debris which would have been required to be removed in the demolition process. The trial court found that, although the Belger equipment and personnel were retained for the purpose of rescuing the buried workmen, such equipment and labor were also used in the demolition process. This finding is supported by the evidence.

Belger’s contribution was not that of a volunteer. They came to the job in response to the request of the contractor. Although Belger would not likely have been involved had the rescue attempt not have been necessary, nevertheless, under the evidence, Belger did contribute to the demolition of the structure. Belger did perform work and furnish machinery “for the purpose of demolishing or razing a building” by virtue of a contract with a contractor with the owner of the premises. The requirements of § 429.015(3), supra, were met and the trial court properly found that Belger Was entitled to a mechanic’s lien.

Appellants’ argument that the trial court’s conclusion of law that Belger was entitled to a lien was erroneous because Belger’s efforts were devoted to a rescue operation, not to the improvement of the property and that such latter objection is essential for the establishment of a mechanic’s lien must be rejected under the facts here found. As above stated, the method of improvement of the property here involved was demolition of the existing buildings. Belger contributed to that objective by doing work that was necessary for the demolition. That such work also had as its objective the rescue of the buried workmen does not destroy the right of Belger to invoke the protection of the mechanic’s lien law.

Judgment affirmed.

AH concur.


author: TURNAGE, Judge.

text:
    Norman SCHAEFFER, Appellant, v. CIBA GEIGY CORPORATION, Respondent.
    No. KCD 29323.
    Missouri Court of Appeals, Kansas City District.
    July 3, 1978.

      Rupert G. Usrey, Oregon, for appellant.
    Patrick McLarney, Gary R. Long, Shook, Hardy & Bacon, Kansas City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

Norman Schaeffer brought suit against Ciba Geigy for alleged failure of the selective herbicide Aatrex 80W to control weeds in his corn. Schaeffer appeals following a jury verdict for Ciba Geigy claiming the trial court erred when it excluded Ciba Gei-gy’s magazine and radio advertisements and when a newspaper article and demonstration of herbicide mixture was admitted. Affirmed.

It must first be noted this court would be fully justified to dismiss this appeal because because of the failure of Schaeffer’s brief to comply with the rules. The transcript consists of two volumes containing 495 pages, yet the statement of facts contains only one paragraph consisting of two sentences which deal with the evidence. However, the points presented may be resolved on well settled principles of law. Nevertheless, counsel should not continue to presume the appellate courts will consider appeals in which the briefs fail to comply with the rules. Numerous appeals have been dismissed for failure of the brief to comply with the rules and this practice will not only continue but will accelerate.

Schaeffer alleged breach of warranty both express and implied together with a failure of the Aatrex supplied to him to comply with the chemical content listed on the label. Ciba filed an interrogatory long before trial in which it inquired as to Schaeffer’s theory of recovery. The answer was the failure of the product to conform to the chemical composition contained on the label.

After Schaeffer’s theory of recovery as stated in the interrogatory answer had been on file for some time, his counsel advised Ciba’s counsel on the evening before trial he would seek to supplement his answer to broaden his theory to include breach of warranty. On the morning of trial Ciba’s counsel objected to supplementing the answer or to any broadening of the issues because Ciba had already prepared to meet the theory that the product failed to conform to the chemical composition stated on the label. Ciba’s counsel stated it was not prepared to produce the additional witnesses required to meet a breach of warranty theory. Schaeffer’s counsel did not make a satisfactory explanation to the trial court for his failure to broaden the issues prior to the evening before trial. The court ruled it would be unfair to Ciba to broaden the issues.

Consistent with this ruling, the trial court excluded evidence of newspaper, magazine and radio ads run by Ciba which related to the capacity of Aatrex to kill weeds. That exclusion is the first point urged on this appeal. It was held in Critcher v. Rudy Fick, Inc., 315 S.W.2d 421, 429[11,12] (Mo.1958) that answers to interrogatories are not pleadings yet the trial court is given a wide discretion to prevent a party who propounds interrogatories from being misled and prejudiced by the answer. Here the court found Ciba would be prejudiced by allowing Schaeffer to expand his theory of recovery when his interrogatory answer had limited his theory. No abuse of that discretion is found and the court was correct in limiting the issues.

Schaeffer next complains of the introduction of a newspaper article by Ciba. When this article was introduced Schaef-fer’s counsel stated he was not objecting on the basis of hearsay. On this appeal the only allegation of error is based on the hearsay doctrine. It is beyond question that an objection not made in the trial court cannot be considered on appeal. Boten v. Breeklein, 452 S.W.2d 86, 96[22] (Mo.1970).

Schaeffer finally complains of the admission of mixture samples of Aatrex prepared by a Ciba employee. It is contended the experiments were not made under conditions similar to those made by Schaeffer when the product was applied. The only purpose of the experiment was to show the jury how a mixture similar to that applied to Schaeffer’s land would physically appear, not what result it would produce. There is no showing of any prejudice resulting from the admission of this evidence. To be reversible error it must be prejudicial and the burden to establish prejudice is on the party claiming error. Fowler v. S-H-S Motor Sales Corp., 560 S.W.2d 350, 357[13, 14] (Mo.App.1977); Rule 84.13(b). No prejudice is demonstrated from the introduction of this experiment.

The judgment is affirmed.

All concur.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    Richard R. ALLEN and Diana J. Reed Allen, Plaintiffs-Appellants, v. Stanley W. CURRY, Jr., Defendant-Respondent.
    No. KCD 29328.
    Missouri Court of Appeals, Kansas City District.
    July 3, 1978.

      John J. McFadden, Sr., Kansas City, for plaintiffs-appellants.
    Thomas G. Kokoruda, George A. Barton, Kansas City (Shughart, Thomson & Kilroy, A Professional Corporation, Kansas City, of counsel), for defendant-respondent.
    Before WELBORN, Special Judge, Presiding, PRITCHARD, J., and HIGGINS, Special Judge.
   ANDREW JACKSON HIGGINS, Special Judge.

The question is whether the court erred in its dismissal of plaintiffs’ petition for damages for personal injuries on the ground it was barred by the 5-year statute of limitations, § 516.120, RSMo 1969. Affirmed.

On July 21, 1968, plaintiffs were injured when struck by an automobile operated by defendant at the intersection of Bannister Road and James A. Reed Road in Kansas City, Jackson County, Missouri.

On July 13, 1973, plaintiffs filed their petition, and summons was directed to defendant at 9206 Richmond Drive, Kansas City, Missouri. A non est return on the summons was made August 16, 1973.

On February 3, 1976, plaintiffs again directed summons to defendant at 9206 Richmond Drive in Kansas City and also caused alias summons to issue. On February 10, 1976, plaintiffs forwarded the alias summons by letter to Dallas, Texas, for service on “Stan W. Curry * * * on J. J. Pierce [or Pearce] Street in Dallas, Texas.” A non est return was made on the Kansas City service March 3, 1976. On April 1, 1976, alias summons was again caused to issue for service at 1927 J. J. Pierce, Richardson, Texas. Service was accomplished on the alias summons April 19, 1976.

On May 5, 1976, defendant filed answer to plead, among other things, the bar of the statute of limitations; and on October 26, 1976, defendant filed motion to dismiss plaintiffs’ petition and alleged that plaintiffs failed to exercise due diligence in effecting service of process and therefore allowed the statute of limitations to run in bar of their petition.

Defendant’s answers to plaintiffs’ interrogatories gave his residence as of July 21, 1968, as “Room 323, D. K. Martin Hall, Baylor University, Waco, Texas”; and his places of residence thereafter as:

July 30,1968 to September 1,1968 Olympic Development High Altitude Training Camp, South Lake Tahoe, California
September 1, 1968 to February 2,1969 Room 323, D. K. Martin Hall, Baylor University, Waco, Texas
February 2,1969 to June 1,1972 913 South 8th Street Waco, Texas
June 1,1972 to September 16,1972 5501 Lake Jackson Waco, Texas
September 16,1972 to February 25,1973 11818 Brenton Ct. Apt. lc Reston, Virginia
February 25,1973 to February 1,1975 5563 Alpha Rd. Apt. 1096 Dallas, Texas
February 1,1975 to present(9/16/76) 1927 J. J. Pearce Dr. Richardson, Texas

As of October 15,1976, Stanley W. Curry, Sr., had resided at 9206 Richmond Drive, Kansas City, Missouri, since 1962. He owned the automobile which, while driven by his son, Stanley W. Curry, Jr., came into collision with plaintiffs. “At the time of said collision my son * * * was a fourth year college student at Baylor University in Waco, Texas and was in the midst of a two week visit at my residence at 9206 Richmond Drive, Kansas City, Missouri. * * *

“On or about July 13, 1973 an attempt was made to deliver a Summons captioned ‘Richard R. Allen vs. Stanley W. Curry, Jr., * * * ’ to my residence at 9206 Richmond Drive, Kansas City, Missouri. I examined the Summons at the time * * * and informed the individual making said attempt * * * that Stanley W. Curry, Jr., did not live at 9206 Richmond Drive, Kansas City, Missouri. The individual * * * made no inquiries whatsoever concerning the whereabouts of Stanley W. Curry, Jr.”

As of October 15,1976, Stanley W. Curry, Jr., resided at 1927 J. J. Pierce Drive, Richardson, Texas. At the time of the collision July 21,1968, “I informed the investigating officer that I was a student in my fourth year of College at Baylor University in Waco, Texas and that I was visiting my parents * * * who resided at 9206 Richmond Drive, Kansas City, Missouri.

“I received notice of the lawsuit * * * for the first time on April 19, 1976.

“Since July 21, 1968, with the exception of * * * September of 1972 to March of 1973 during which period I resided in Re-sten, Virginia, I have been a resident of the State of Texas and all of my home addresses during such period have been a matter of public record.

“At no time since July 21, 1968 have I had any contact * * * with either of the plaintiffs * * *.

“I have never in any manner attempted to avoid any service of process * *

The police department vehicular accident report of July 21, 1968, identified Stanley W. Curry, Jr., born 9-23^7, by address “9206 Richmond Dr. K.C. Mo.” attending “School-Baylor U.”

The foregoing supports the court’s findings and resultant order and judgment of dismissal, viz.:

“Defendant’s motion to dismiss plaintiffs’ petition is sustained for the reason that the record affirmatively shows that plaintiffs’ causes of action accrued July 21, 1968 but that suit was not filed until July 13,1973, 4 years and 51 weeks thereafter; that summons was issued July 13,1973 and returned ‘non est’ August 16, 1973; that plaintiffs did not thereafter cause alias summons to be issued until February 3, 1976, nearly 30 months later; that said alias summons was directed to the same address at which plaintiffs sought service of process on defendant July 13, 1973 and that said alias summons was likewise returned ‘non est’ March 3, 1976; that plaintiffs thereafter caused second alias summons to be issued April 1, 1976 which was served upon defendant April 26, 1976. The filing of a petition and issuance of summons is but a conditional halting of the applicable statute of limitations and unless a plaintiff thereafter exercises due diligence in obtaining service of process the statute continues to run. Wool-iver v. Schopp, 509 S.W.2d 216 (Mo.App. 1974), and cases cited therein. [See also Vo taw v. Schmittgens, 538 S.W.2d 884 (Mo. App.1976).] The Court finds that by permitting their petition and causes of action to be dormant between August 16,1973 and February 3, 1976, plaintiffs have failed to prosecute their claims without reasonable delay and concludes that therein claims are now barred by Section 516.120, R.S.Mo 1969, V.A.M.S.”

The court’s findings and judgment are to be sustained unless there is no substantial evidence in support, unless against the weight of the evidence, unless erroneous in declaration or application of the law. Rule 73.01.3, as construed Murphy v. Car-rón, 536 S.W.2d 30, 32 (Mo. banc 1976).

Appellants’ effort to demonstrate error in the court’s findings is limited to emphasis of statements and inferences of counsel relative tolling of the statute by temporary absence from residence and exercise of diligence in location of defendant. Such statements are not sufficient to meet appellants’ burden. John Hancock Mutual Life Ins. Co. v. Dawson, 278 S.W.2d 57 (Mo.App.1955); Davis v. Long, 521 S.W.2d 7 (Mo.App.1975); Anderson v. Biscoe, 201 S.W.2d 432 (Mo.App.1947).

Judgment affirmed. All concur.


author: GENE R. MARTIN, Special Judge.

text:
    Robert Harry PLANT, Appellant, v. Edward E. HAYNES, Director, Division of Corrections, and Donald W. Wyrick, Warden, Missouri State Penitentiary, Respondents.
    No. KCD 29380.
    Missouri Court of Appeals, Kansas City District.
    July 3, 1978.
    Jerry W. Venters, Asst. Public Defender, 19th Judicial Circuit, Jefferson City, for appellant.
    Robert Presson, Paul Robert Otto, Asst. Attys. Gen., Jefferson City, for respondents.
    Before SHANGLER, P. J., WASSER-STROM, J., and CLARK and MARTIN, Special Judges.
   GENE R. MARTIN, Special Judge.

Plaintiff, a prisoner in custody in the Missouri State Penitentiary, filed two separate petitions in the Cole County Circuit Court against the Director of the Division of Corrections and the Warden. Each petition was denominated a petition for declaratory judgment and alleged it was brought “pursuant to Chapter 527 et seq. RSMo 1969, and Supreme Court Rule 87.02(d); * * * to remove uncertainty and resolve a controversy between plaintiff and the defendants * * Upon motion of plaintiff, the two petitions were consolidated.

The petition assigned number 28738 claimed that defendants were erroneously construing and applying a five year sentence plaintiff received November 9, 1973, in the Circuit Court of St. Louis County, Case No. 292885, for attempted burglary second degree as being a consecutive term of imprisonment to sentences of ten years and five years imposed by the Circuit Court of St. Charles County, Case No. 7835, for burglary second degree and stealing in connection with a burglary respectively. Plaintiff alleged that the oral pronouncement of sentence in Case No. 292885, which stated “said sentence to run consecutive to sentence imposed in St. Charles, Missouri” was vague and indefinite and that defendants’ erroneous computation deprived him of his constitutional rights. He prayed for “a declaratory judgment against the defendants by declaring that defendants are illegally computing said five (5) year sentence as a consecutive term of imprisonment.”

The petition assigned number 28739 is not set out in the transcript, however, a reading of the entire transcript indicates that this petition was with reference to the sentences imposed by the Circuit Court of St. Charles, Missouri in Case No. 7835. In this petition, apparently, plaintiff’s contention was that defendants were erroneously construing the five year sentence for stealing in connection with a burglary as being consecutive to the ten year sentence for burglary second degree. We note that in a motion for default judgment filed by plaintiff, obviously addressed to the issues in this petition numbered 28739, he seeks a declaration that the five year sentence imposed by the Circuit Court of St. Charles County, Missouri, in Case No. 7835, be regarded as a concurrent term of imprisonment with the ten year sentence imposed by the same court for burglary second degree.

Subsequently, plaintiff filed a supplement to each of his petitions. Supplementing his petition regarding the St. Louis County sentence, plaintiff made the additional point that said sentence should commence on the date of imposition because the judgment and sentences in St. Charles County were void. Supplementing his petition regarding the St. Charles County sentences, plaintiff made the additional point that said sentences were void because the oral pronouncement of judgment and sentence failed to show a finding of guilt by the court either upon a jury verdict or a plea of guilty.

Still later, plaintiff filed another “Petition for Declaratory Judgment.” Plaintiff recites in the opening paragraph that the petition was filed pursuant to the court’s request. It appears that trial was had upon this, the third petition filed. The third petition basically consolidated within the one petition the allegations and contentions of plaintiff as contained in the two petitions originally filed by plaintiff. Plaintiff’s contention that the St. Charles County sentences were void as set forth in the supplemental petitions was not realleged.

The third petition alleged, in substance, that plaintiff was confined by virtue of a sentence imposed June 1,1970, in case number 7835 in the Circuit Court of St. Charles County in which he received ten years for burglary second degree and five years for stealing in connection with a burglary “such terms to run consecutively”; that while serving said sentence, plaintiff was convicted in the Circuit Court of St. Louis County, Case No. 292885, of attempted burglary, second degree and on November 9, 1973, he received a five year sentence “to run consecutive to sentence imposed in St. Charles, Missouri”; that defendants are construing and computing the sentences in Case No. 7835 as being consecutive resulting in a fifteen year term, and further construing the sentence of five years in Case No. 292885 as being consecutive to the ten and five year sentences in Case No. 7835 making a total combined sentence of twenty years; that under the law, all of said sentences were concurrent and that defendants were violating his constitutional rights by computing the same as consecutive. Plaintiff prayed the court to declare his sentences to be concurrent and to order the defendants to so compute his term of imprisonment.

Defendants’ answer to the third petition denied, inter alia, the court’s jurisdiction alleging the exclusive procedure for correcting a sentence is by motion pursuant to Supreme Court Rule 27.26, Y.A.M.R.

On February 18, 1977, the trial court entered its order declaring that the sentences in Case No. 7835 were consecutive, and that the sentence in Case No. 292885 was consecutive to the sentences imposed in Case No. 7835, that defendants had properly interpreted said sentences and denied plaintiff the relief requested. Plaintiff appealed.

The only point raised and briefed by plaintiff on this appeal relates to the sentence imposed in Case No. 292885 by the Circuit Court of St. Louis County. Plaintiff contends said sentence “was so vague, indefinite, uncertain and ambiguous that it could not be determined from the record whether the sentence imposed should be served consecutively or concurrently with the sentences imposed by the Circuit Court of St. Charles County” and therefore it must be construed to be concurrent.

Neither party, on this appeal, has raised the question of the trial court’s jurisdiction to consider plaintiff’s petition. Nevertheless, this court is obligated to consider it ex gratia. Huffman v. Department of Revenue, 523 S.W.2d 107 (Mo.App.1975). Jurisdiction of the trial court is a matter which may be raised at any time. Randles v. Schaffner, 485 S.W.2d 1 (Mo.1972). If the trial court was without jurisdiction, its judgment was absolutely void. Huffman v. Department of Revenue, supra; Randles v. Schaffner, supra. An appeal from a void judgment vests no jurisdiction in this court except to determine the invalidity of the judgment appealed from and dismiss the appeal. Ross v. Conco Quarry, Inc., 543 S.W.2d 568 (Mo.App.1976).

Plaintiff has made it clear by his petition that he seeks an order of the court declaring his rights, status and legal relations as affected by the sentences imposed against him. He has specifically denominated his petition as one for a declaratory judgment and he claims that an order upon his petition will terminate a controversy between him and the defendants and remove an uncertainty regarding the term of his imprisonment. It is equally clear that the allegations of plaintiff’s petition constitute a collateral attack upon the sentences imposed against him. The object of his petition is to have vacated or set aside that part of each sentence which states that it is to run consecutively. In this manner, plaintiff seeks to have his sentences corrected and as thus corrected, his sentences would run concurrently.

The exclusive remedy for such an attack is by motion pursuant to Rule 27.26, Rules of Criminal Procedure. Zigler v. State, 467 S.W.2d 873 (Mo.1971). The Rule cannot be circumvented by denominating the petition by a different name. Wiglesworth v. Wyrick, 531 S.W.2d 713 (Mo. banc 1976). Also see State v. Warren, 344 S.W.2d 88 (Mo.1961) and State v. Campbell, 307 S.W.2d 486 (Mo.1957).

It is specifically provided by the Rule that the motion shall be filed in the court where the sentence was imposed. Rule 27.-26 is, in substance, the same as similar provisions of 28 U.S.C.A. § 2255 relating to judgments in the federal courts. Section 2255 requires the institution of the proceeding in the sentencing court. The federal courts have held this requirement to be jurisdictional. Consequently, a court, which did not impose the sentence, is without jurisdiction in the matter. Gajewski v. Stevens, 346 F.2d 1000 (8th Cir. 1965); Blake v. State of Florida, 395 F.2d 758 (5th Cir. 1968); Domer v. Smith, 422 F.2d 831 (7th Cir. 1969).

We also hold that the requirement of Rule 27.26 which provides that the motion shall be filed in the sentencing court is jurisdictional. Wiglesworth v. Wyrick, supra. None of the sentences to which plaintiff’s petition is directed was imposed in the Cole County Circuit Court. The trial court was therefore without jurisdiction of plaintiff’s petition and the subject matter thereof. Plaintiff’s petition should have been dismissed.

Plaintiff’s appeal is therefore dismissed. This cause is remanded to the trial court with directions to set aside the judgment and order made on February 18, 1977, and to dismiss plaintiff's petition for want of jurisdiction.

All concur.


text:
    STATE of Missouri, Respondent, v. Daniel PERKINS, Appellant.
    No. KCD 29390.
    Missouri Court of Appeals, Kansas City District.
    July 3, 1978.
    Albert A. Riederer, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Stanley H. Robinson, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

Daniel Perkins was convicted of two counts of first degree robbery under § 560.-135, RSMo. 1975 Supp. The court assessed punishment at ten years imprisonment on each count to be served consecutively.

On this appeal Perkins complains of an illegal search and seizure and of the excuse of a venireman for cause. Affirmed.

On August 6, 1976, at about 7:00 P.M., three black males committed an armed robbery of a filling station at 5600 Troost in Kansas City. They first robbed an employee of about $40 and then robbed the manager of about $140. The three fled in an automobile. After the police were notified, an automobile answering the description of the getaway car was intercepted at 59th and Garfield by a police car. A chase ensued which terminated in the 5900 block of Olive when the three men jumped out of the car and fled in an easterly direction between houses. The police car immediately involved in the chase was in radio contact with another police car which was traveling approximately parallel on Wabash, one street east of Olive. Officer Roberts was a passenger in the police car on Wabash. Almost immediately after hearing the report that the men were on foot fleeing between houses toward the east, Roberts saw Perkins on the west side of Wabash walking north in a very rapid fashion. The police car pulled up and Roberts noted Perkins was breathing very heavily. Perkins wore stockings but no shoes. When the police car approached Perkins, he dropped something which Officer Roberts could not identify. Officer Roberts got out of the police car and called to Perkins to stop and raise his hands. Perkins complied and as Roberts approached he saw money extending from Perkins’ front trouser pocket and a ear key in his left hand. Roberts advised Perkins he was under arrest and performed a pat down. He also removed $180 from Perkins with $65 in $1 denominations. A quantity of dollar bills had been taken in the robbery. Roberts also determined the item dropped by Perkins when Roberts first observed him was a pair of sunglasses.

Perkins concedes there was sufficient evidence to permit a finding he was one of the three robbers involved, but challenges the legality of the search which produced the money. Perkins argues there was no probable cause for Roberts to arrest him and, therefore, there was no basis to support the subsequent search.

It was held in State v. Dodson, 491 S.W.2d 334, 336[1] (Mo. banc 1973) that the existence of probable cause for arrest depends upon the facts of each case. The court further stated the existence of probable cause “ ‘is determined by factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. It is a pragmatic question to be determined in each case in the light of the particular circumstances and the particular offense involved.’ ”

The question here involved is whether or not Officer Roberts had sufficient facts upon which to base a belief of probable cause that Perkins was one of the three men involved in the robbery. Although Roberts did not have a physical description of the three men except that they were black, he was traveling parallel with a police car actively chasing the car occupied by three blacks which had been described as the car in which the robbers fled. Almost immediately after he was advised the three men had left this car and were fleeing east on foot between the houses, he saw Perkins in the location he would expect to see people fleeing along the route described. Perkins was breathing heavily, and while not running he was walking very fast. When he became aware of the police car he dropped something and continued walking. He had on stockings but no shoes. Under these facts Officer Roberts was justified in stopping Perkins and when he drew close enough to Perkins to observe the money protruding from his pocket he had ample grounds to justify a belief that Perkins was one of the robbers being sought. This being true, the subsequent search was supported by a lawful arrest. State v. Perry, 499 S.W.2d 473 (Mo.1973).

Perkins’ other point relates to the excuse of a venireman for cause. This venireman was examined with relation to the maximum penalty of life imprisonment for first degree robbery. The venireman stated he could not go along with life imprisonment for this crime. Further examination revealed he could consider a punishment of 20 years but anything beyond that would go against his grain.

Perkins argues this venireman should not have been excused under the holding in Witherspoon v. Illinois, 391. U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). However, this point has been fully answered in State v. Quinn, 461 S.W.2d 812, 815 (Mo.1970). There the court said the exclusion of those veniremen who stated they had beliefs or scruples which prevented them from considering the full range of punishment was not prohibited by Witherspoon. In this case the venireman clearly indicated unwillingness and inability to consider the full range of punishment for robbery in the first degree. It was not error to excuse this venireman for cause.

Judgment affirmed.

All concur.


text:
    James R. MULLEN, Plaintiff-Appellant, v. Paul PARKE, Carl G. Allison, David Orem and R. E. Beebe, Defendants-Respondents.
    No. KCD 29422.
    Missouri Court of Appeals, Kansas City District.
    July 3, 1978.
    Robert B. Zeldin, DeWitt & Zeldin, Kansas City, for plaintiff-appellant.
    Clyde G. Meise, Meise, Cope & Coen, Kansas City, for defendants-respondents.
    Before WELBORN, Special Judge, Presiding, and PRITCHARD, J., and HIGGINS, Special Judge.
   ROBERT R. WELBORN, Special Judge.

Action for damages for wrongful attachment. Trial court sustained defendants’ motion for directed verdict at close of plaintiff’s ease. Plaintiff appeals.

When James R. Mullen failed to pay Paul Parke, Carl G. Allison, David Orem and R. E. Beebe, doing business as Grandview Alignment and Brake Service, $464.15 for repairs they claim to have made on a 1967 Chrysler, Parke, et al., brought suit against Mullen in the Jackson County Magistrate Court for the amount claimed. The plaintiffs obtained a writ of attachment in support of their action and levied and took possession of the 1967 Chrysler in April, 1971. In September, 1971, Mullen posted a bond for release of the vehicle.

On June 14,1971, judgment was rendered in the magistrate court in favor of plaintiffs for $449.50. Defendant appealed to the circuit court which, on August 17, 1973, rendered judgment dissolving the attachment and finding the issues in favor of defendant Mullen on plaintiffs’ claim.

Mullen filed the present action in the Jackson County Circuit Court, alleging that the affidavit in support of the attachment was false and that no legal ground existed for a writ of attachment which was wrongfully and maliciously sued out. Mullen sought $25,000 actual damages and $50,000 punitive damages.

At trial, Mullen was the sole witness in his own behalf. At the conclusion of his testimony, defendants moved for a directed verdict for the reason that plaintiff had failed to prove ownership of the vehicle which was attached. Defendants’ argument in support of the motion was based upon Schwarz v. Gage, 417 S.W.2d 33 (Mo. App.1967), which, they argued, held that ownership of a motor vehicle could be proved only by the certificate of title issued by the state. No such evidence had been presented by plaintiff. The court concluded that “ * * * there was a failure of proof, namely, the failure to prove titled ownership in this plaintiff * * * ” and sustained the motion for directed verdict. Plaintiff’s motion for new trial was overruled and he appealed.

The trial court was clearly in error in concluding that ownership of the vehicle could be shown only by production of the certificate of title. In the case of State v. Wahlers, 56 S.W.2d 26 (Mo.1932), the court in a prosecution for driving an automobile without the consent of the owner was confronted with the contention that ownership of the vehicle was not proved by records of the state motor vehicle registration department. The court’s response was: “C. E. Bodine testified that the Master Six Buick in question was his property. This evidence was sufficient to establish the fact of ownership.” This holding has been repeated frequently. See State v. Curry, 473 S.W.2d 747 (Mo.1971); State v. Colton, 529 S.W.2d 919, 923[8] (Mo.App.1975).

The respondents do not attempt to sustain the trial court’s ruling on the basis announced by him. They do contend that, in any event, there was no evidence of appellant’s ownership of the vehicle.

In this case, Mullen did not state directly that he was the owner of the vehicle. He did state that he was in the office machine business and that he transported machines in “my station wagon,” which he described as a 1967 Chrysler which he ordered “special with posi-traction and I put air shocks on it.” He also testified that he did not have the vehicle at the time of the trial because he “sold it” to his mechanic. Plaintiff also introduced in evidence the court file in the action against Mullen wherein plaintiffs alleged that plaintiffs entered into a contract with defendant Mullen “to repair a 1965 Chrysler, the property of the defendant, * * *.” (This allegation was called to the trial court’s attention in the present case. No contention was made by defendants’ counsel based upon the discrepancy between the allegation of a “1965 Chrysler” and the evidence which dealt with a 1967 Chrysler. On oral argument of this case, counsel for respondents acknowledged that the 1965 reference was in error.)

In reviewing the trial court’s action, this court must give appellant the most favorable view of all of the evidence, together with the benefit of all favorable inferences to be drawn therefrom. Boyle v. Colonial Life Ins. Co. of America, 525 S.W.2d 811, 815[6] (Mo.App.1975). Viewing the evidence in this light, the court concludes that the testimony of Mullen was sufficient to establish his ownership of the vehicle for purpose of this action.

The basis of the trial court’s ruling having been erroneous and there having been evidence adequate to establish Mullen’s ownership of the vehicle, the judgment is reversed and the cause remanded for retrial.

Reversed and remanded.

All concur.


text:
    Carol A. LEBS, Plaintiff-Respondent, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellant.
    No. KCD 29458.
    Missouri Court of Appeals, Kansas City District.
    July 3, 1978.
    Edward W. Mullen, Deacy & Deacy, Kansas City, for defendant-appellant.
    Thomas D. Cochran, Joe F. Willerth, Piedimonte & Cochran, Independence, for plaintiff-respondent.
    Before WELBORN, Special Judge, Presiding, PRITCHARD, J., and HIGGINS, Special Judge.
   ROBERT R. WELBORN, Special Judge.

Action to recover under the uninsured motorist coverage in separate policies of insurance. Judgment was entered in favor of plaintiff on jury verdict for $7,500.00. Insurer appeals.

State Farm Mutual Automobile Insurance Company issued two policies of automobile insurance covering vehicles owned by Joseph A. and Carol Ann Lebs. Each policy provided 10/20 uninsured motorist coverage.

On October 2, 1973, Carol A. Lebs was injured when an auto in which she was a passenger and which was driven by Gail Dennis collided with an auto driven by Roger Dale Logan. The Lebs’s State Farm policies were in effect at that time. Dennis had a policy with Farmers and Merchants Insurance Company which provided $10,000 uninsured motorist coverage. Logan was an uninsured motorist.

Carol Lebs sued Farmers and Merchants to recover $10,000 damages under the unin- « sured motorist coverage of its policy. By an amended petition State Farm was named a party defendant and recovery of $20,000 was sought under the uninsured motorist coverage of its policies.

The plaintiff settled her claim against Farmers and Merchants and in consideration of the payment of $8,500 to her, she executed a covenant not to sue in favor of Farmers and Merchants. State Farm was not requested to and did not consent to such settlement.

When the claim against State Farm came on for trial, the defendant presented and preserved for review three defenses: First, that plaintiff in her petition had alleged that the coverage afforded by Farmers and Merchants was primary and that by State Farm was secondary and that plaintiff did not exhaust the primary coverage before proceeding against State Farm; second, that plaintiff’s settlement with Farmers and Merchants without the consent of State Farm violated the “consent exclusion” of the State Farm policies; third, that plaintiff had entered into an accord and satisfaction which precluded her claim. The trial court ruled adversely to defendant on all three defenses.

Plaintiff’s claim was submitted to the jury under an instruction requiring a finding that plaintiff’s injuries were due to Logan’s negligence and that Dennis was not negligent. The jury was also instructed that the amount of plaintiff’s damages should be reduced by $10,000, the Farmers and Merchants coverage. The jury found that plaintiff’s damages were $17,500 and they returned a verdict in plaintiff’s favor for $7,500.00. After its post-trial motions had been overruled, defendant appealed.

Here, appellant first asserts that the trial court erred in holding that the “consent exclusion” of appellant’s policies did not exclude coverage. Respondent’s position is that the “consent exclusion” clause is void as against public policy insofar as uninsured motorist coverage is concerned. This problem was considered by this court in the ease of Craig v. Iowa Kemper Mutual Ins. Co., 565 S.W.2d 716 (Decided April 3, 1978). The conclusion there reached was in accord with the position of the respondent here. It was held that the “consent exclusion” “ * * * attempts to make a mandatory obligation of full coverage only conditional. In effect, the policy exclusion only chills settlements with joint tortfeasors to the detriment of the injured person and sub-serves no legitimate purpose of the insurer. This policy exclusion, when applied to tort-feasors other than the uninsured motorist, restricts the mandatory coverage under the statute, and is void.” 565 S.W.2d 725. The case of Kisling v. M. F. A. Mutual Insurance Co., 399 S.W.2d 245 (Mo.App.1966), the primary reliance of appellant here, was distinguished in Craig on the basis of its predating the statute which required that automobile liability policies in this state include uninsured motorist coverage. § 379.-203, Laws of Mo.1967, as amended by Laws of Mo., 1971, p. 398.

Craig is dispositive of the issue here presented. Appellant’s claim of error in this regard is precluded by Craig.

Appellant’s second point is that respondent was not entitled to recover under appellant’s “admittedly excess” policies since the primary coverage of Farmers and Merchants had not been exhausted. This claim is likewise answered by a recent decision of this court. In Midwest Mutual Insurance Company v. Aetna Casualty & Surety Company, 565 S.W.2d 711 (Mo.App.1978), the injured person had the benefit of two policies extending uninsured motorist coverage. Midwest issued one to the insured for a vehicle owned by him. Aetna issued a policy to the injured person’s stepfather in whose home he resided. The injured person effected a $4,500 settlement with Midwest. When Aetna declined to contribute to the settlement, it was sued by the Midwest company. Aetna relied upon its policy providing only excess coverage.

In rejecting this defense, the court stated:

“ * * * Aetna’s policy afforded a full $10,000 in uninsured motorist coverage to Banks the same as the Midwest policy.; Thus, the question is not whether Midwest is a primary carrier or whether Aetna is an excess carrier or whether Aetna’s coverage is only pro rata with Midwest. By reason of the removal of all restrictions on uninsured motorist coverage, each policy involved here afforded Banks $10,000 in uninsured motorist coverage.” 565 S.W.2d 712.

In that case, the court relied upon Steinhaeufel v. Reliance Insurance Companies, 495 S.W.2d 463, 466[1] (Mo.App.1973), in which the court held the “other insurance” clause in uninsured motorist coverage void as against public policy expressed in § 379.-203. The court also considered persuasive the reasoning of two Florida cases, Sellers v. United States Fidelity & Guaranty Co., 185 So.2d 689 (Fla.1966), and Allstate Insurance Company v. Dairyland Insurance Company, 271 So.2d 457 (Fla.1972), in which “other insurance” provisions of uninsured motorist policies were rejected in favor of pro rata liability under all applicable policies.

Appellant relies upon Barnwell v. Allstate Insurance Company, 55 Ala.App. 447, 316 So.2d 696 (1975). In that case, the injured person settled for less than the amount of coverage under the uninsured motorist policy issued to the owner of the vehicle in which she was a passenger when injured. She sought then to prosecute a claim against the insurer which had provided coverage under an owner’s policy issued to her. The insurer resisted the claim on the grounds that its policy, by its terms, provided only excess coverage in the circumstances and that claim under it was barred because of the settlement with the primary carrier for less than the amount of its coverage. The Alabama Court of Civil Appeals upheld this contention, relying upon a prior decision in Almeida v. State Farm Mutual Insurance Company, 53 Ala.App. 175, 298 So.2d 260 (1974).

In Almeida, the court rejected the reasoning of Sellers v. United States Fidelity & Guaranty Co., supra. In view of this court’s recent approval of the Sellers case, the Alabama decisions are not persuasive. On the basis of the holding in Midwest v. Aetna, supra, this assignment of error is rejected.

Appellant finally contends that the trial court erred in holding that the covenant not to sue executed by respondent in favor of Farmers and Merchants did not as a matter of law constitute an accord and satisfaction and a complete bar to respondent’s claim. Appellant points to language of the document executed by respondent in which she agreed, in consideration of the payment of $8,500, “ * * * the receipt and sufficiency whereof is hereby acknowledged * * to dismiss her claim against Farmers and Mutual and to refrain from any further demand against them. Appellant argues that, although respondent purported by the document to retain her right to assert the claim here involved, by acknowledging the “sufficiency” of the payment by Farmers and Merchants she acknowledged full satisfaction of her claim and that she is entitled to but one satisfaction.

The covenant not to sue executed by respondent clearly and expressly reserved to her the right to proceed with her claim against appellant. That she acknowledged the “sufficiency” of the payment by Farmers and Merchants cannot preclude the viewing of the covenant in its entirety and when so viewed, there can be no doubt that the parties to the covenant did not contemplate that the payment thereunder should be in complete satisfaction of respondent’s claim. Liberty v. J. A. Tobin Construction Company, Inc., 512 S.W.2d 886, 890[4] (Mo.App.1974). The express reservation of the right to proceed against appellant distinguishes this case from Rogers v. Piper, 543 S.W.2d 261 (Mo.App.1976), and Hanson v. Norton, 340 Mo. 1012, 103 S.W.2d 1 (1937), relied upon by appellant.

Judgment affirmed.

All concur.


author: SHANGLER, Presiding Judge.

text:
    Ross PITTS, a minor by Janel P. Pitts, his natural mother and next friend, Appellant, v. BOARD OF EDUCATION OF REORGANIZED SCHOOL DISTRICT R-IX OF GRUNDY COUNTY, Missouri, Richard Owings, D. V. M., Frank Hoffman, Nancy Wade, Jerry Hudson, Grover Snef, and Lyle E. Spillman, in their official capacity as members and administrative officials, Respondents.
    No. KCD 29483.
    Missouri Court of Appeals, Kansas City District.
    July 3, 1978.

      Millard F. Aldridge, Kansas City, for appellant.
    Marvin L. Sharp, Stockard, Andereck, Hauck, Sharp & Evans, Trenton, for respondents.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   SHANGLER, Presiding Judge.

The petition comes on behalf of a seventeen year old high school student, Ross Pitts, through his parents for evaluation as a handicapped child entitled to special educational services within §§ 162.670 et seq., RSMo Cum.Supp.1973. The child was denied assignment for special services by the Grundy County School Board [Board of Education of Reorganized School District R— IX] and then on the reevaluation authorized by § 162.950 was again denied such assignment. The subsequent formal hearing conducted under § 162.961 was also adverse to the student. Review by the circuit court under Chapter 536 affirmed the decision of the Board and this appeal ensued.

A motion to dismiss the appeal for mootness was brought in this court by the respondent Board on the assertion that student Ross Pitts had since removed residence from the Reorganized School District R-IX of Grundy County and so was no longer entitled to educational services from the District. It was shown by affidavit, and conceded on oral argument, that student Ross Pitts and his mother had established new residence in the Chillicothe School District where he had enrolled and completed the sophomore high school year. It was shown also that the Pitts family continued to own the residence within the Grundy County R — IX School District and to pay lawful taxes. The dual residences were established when the Chillicothe School District, the locale where the mother was employed, agreed to provide the boy with the special services Grundy County had rejected. The mother and son have since continued to live' in Chillicothe while the father remains at the Grundy County home.

The law clearly allows “[a]ny person who pays a school tax in any other district than that in which he resides [to] send his children to any public school in the district in which the tax is paid . . . .” § 167.-151.3, RSMo 1969. Thus, the current Chilli-cothe residence of the boy does not disqualify his enrollment in the public schools of the Grundy County R-IX School District and does not render moot his petition for the special educational services of that District. The petition is made moot, however, by the inability of the judicial process to render a judgment of any practical effect to the petitioner.

Our review of the proceedings requires the conclusion — we presently explain — that an adjudication on the merits of the appeal would require a remand to the Board of Education of Grundy County R-IX School District for a new evaluation of the need of petitioner for special educational services according to the procedures of § 162.961. The boy, now seventeen years of age, has completed the sophomore high school year. The proceedings to evaluate his need for special educational services commenced in July of 1974, when the boy was a seventh grade junior high school student. The administrative procedures brought that issue to the circuit court for review in December of 1974, where decision was not rendered until March of 1977. We are disconcerted that this process of determination has been so laggardly for so cogent a statutory purpose. At best, the process of new administrative evaluation, judicial review and appeal, if followed with all the diligence the law allows, would require a year to accomplish. By that time, the petitioner would be a senior about to complete his high school career and so thereafter would be ineligible for the special educational services established for handicapped children. § 162.675.-2.

We note, however, that disposition of a proceeding under the Special Educational Services Act for mootness on the ground of impracticality of relief is not apt to recur. The enactment was in 1973 and by that time the petitioner was almost fourteen years of age. It reaches all handicapped students in the public schools of Missouri between five and twenty-one years of age. §§ 162.675.2 and 162.700.1. The enactment aims at the “early recognition, diagnosis and intensive educational services” for the correction of handicap. In the normal course of the administration of these legislative purposes, the detection of learning problems will be at the earliest enrollment and disputes as to the coverage of the law will not altogether impair the benefits to those entitled to receive them.

The present circumstances, fortunately, have allowed the Pitts parents to enroll the boy with the Chillicothe School District for the special remedial education denied by Grundy County. The boy has made marked and continued progress under that regimen. This arrangement, however, comes only at personal and economic cost to the Pitts family — separation of household and additional expense. It is for these reasons that the parents continue to assert their option under § 167.151(3) to enroll the child in the public schools of Grundy County, the district where they pay school taxes.

In the normal course of review an appellate court is bound by determinations of fact of an administrative body found on competent and substantial evidence but not by determinations of law. Wolf v. Missouri State Training School for Boys, 517 S.W.2d 138, 142[3, 4] (Mo. banc 1975). The decision of the Board to deny student Pitts evaluation as a handicapped child rests on an error of law. The determinations of fact [Numbers 5, 6 and 8, among others] rest on the premise that a student who exhibits an average performance does not qualify for special educational services under the Act. A handicapped child is defined by § 162.-675.2 as a child “under the age of twenty-one years who [has] not completed an approved high school program and who, because of mental, physical, emotional or learning problems, require[s] special educational services in order to develop to [his/her] maximum capacity.” [Emphasis added.] The Act does not consign a student to an hypothetical median level of achievement but allows optimal personal development where the actual capacity exceeds the average.

The undisputed evidence shows that the boy suffers from organicity — a minimum brain disfunction — manifested by hyperactivity, lack of concentration, distractibility and compulsiveness. The undisputed evidence also shows that the boy tested at a high average I. Q. — within two points of the top of that range. His standing within the average of his class does not reflect a median performance in each area of instruction but the mean between superior learning in some areas, such as reading, and inferior learning in many others, such as spelling and mathematics. This performance is not that to be expected of a boy with the unusual ability in abstract and perceptual concepts shown by his tests. Rather, the expectation was for superior academic work near the top of his class. The determinations of the Board that, in effect, the achievement of average scholastic performance disqualifies for the remedial services of the Act are contrary to law.

We do not reverse judgment and remand to the Board for reconsideration of the evidence on these principles of law. However, since there is no reasonable likelihood that a new adjudication will be sufficiently timely to afford the petitioner any practical relief. Tootle v. Tootle, 362 S.W.2d 760, 762[3, 4] (Mo.App.1962).

Accordingly, the appeal is dismissed as moot.

All concur.

      . The statement of policy [§ 162.670] of the Special Educational Services Act is the implementation of Section 1(a) of Article IX of the Missouri Constitution of 1945 which establishes public schools. The Act furthers the constitutional policy for free public education by the requirement that the public schools provide handicapped students with free special educational services. The section concludes with the declaration: “The timely implementation of this policy is declared to be an integral part of the policy of this state.” [Emphasis added.]


text:
    STATE of Missouri, Respondent, v. Henry L. DUNCAN, Appellant.
    No. KCD 29578.
    Missouri Court of Appeals, Kansas City District.
    July 3, 1978.
    J. Arnot Hill, Hill & Gamm, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

Henry Duncan was convicted on two counts of assault with intent to do great bodily harm with malice. Section 559.180, RSMo 1969. After the jury was unable to agree upon punishment, the court assessed concurrent 15-year terms on each count.

On this appeal Duncan challenges the sufficiency of the evidence. Affirmed.

There was evidence from which the jury could have reasonably found that in July, 1976, about 5:30 P.M., Officers Fleming, Jones and Lipka of the Kansas City Police Department were dispatched to a house to investigate a disturbance involving an armed person. When the officers arrived at the residence, they observed a young man, later identified as Duncan, standing on the front porch ’with a shotgun. When Duncan saw the officers he pointed the gun at them then retreated into the house. Shortly af-terwards the officers saw a screen covering a second floor window knocked out and a gun extended pointing at Officer Lipka. A shot was fired from this gun which struck the officers’ patrol car. Officer Lipka returned the fire and Duncan was struck by flying glass.

A short time later Sgt. Long of the police department arrived and took up a position next to Officer Lipka behind a patrol car. A few minutes later another shot was fired from the same second floor window. No one was struck by this shot. A few minutes later a third shot was fired from the same window. This shot struck Officer Lipka and some pellets struck Sgt. Long’s boot. Officer Lipka suffered extensive wounds and required hospitalization.

There was evidence from which the jury could find there was no one else in the house at the time the shots were fired except Duncan. Duncan readily admitted firing a .410 gauge-pump shotgun. He stated the first shot was accidental and although the last two were fired intentionally, he denied any intent to injure anyone. Although Duncan’s point in his brief challenges generally the sufficiency of the evidence, his argument is directed largely at the failure of the evidence to show Duncan intended to do any harm to Sgt. Long. This argument tacitly concedes the evidence was sufficient to support a finding of guilt as to the count which charged the assault with malice as to Officer Lipka. However, Duncan denies the evidence is sufficient to show an assault under § 559.180 against Sgt. Long because there was no evidence to show he intended to kill or cause great bodily harm to Sgt. Long. Duncan seems to argue this conclusion must follow because the evidence failed to show Duncan was aware of Sgt. Long’s presence in addition to that of Officer Lipka. The argument concludes that it was purely accidental when Sgt. Long was struck by shotgun pellets because Duncan did not know Sgt. Long was in a position to be struck.

The evidence brings this case squarely within the well established rule that “[t]he law presumes malice as a concomitant of an assault with a deadly weapon, in the absence of countervailing testimony or circumstances.” State v. Kopf, 481 S.W.2d 7, 9[1, 2] (Mo.1972).

Here there was no countervailing evidence and, in fact, the evidence shows the shots were intentionally fired. In that circumstance the presumption is fully operative and the evidence was sufficient to allow the jury to find an assault with intent to do great bodily harm with malice as to both Officer Lipka and Sgt. Long.

The judgment is affirmed.

All concur.