author: DONNELLY, Judge.

text:
    David Ray PETERSON, Appellant, v. STATE of Missouri, Respondent.
    No. 60778.
    Supreme Court of Missouri, En Banc.
    Nov. 6, 1978.
    Larry D. Harman, Asst. Public Defender, Gerald Kiser, Public Defender, Liberty, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   DONNELLY, Judge.

On January 21, 1977, appellant appeared in the Circuit Court of Clay County, Missouri, without counsel, entered a plea of guilty to a charge of burglary in the second degree, and was sentenced to imprisonment for a term of eight years.

On February 28, 1977, appellant filed in the Circuit Court of Clay County, Missouri, his Motion to Vacate Judgment under Rule 27.26. On March 25, 1977, the Motion to Vacate Judgment was overruled.

On April 3,1978, the Kansas City District of the Court of Appeals affirmed. On June 15, 1978, the cause was transferred to this Court. We finally determine the cause “the same as on original appeal.” Mo.Const., Art. V, § 10.

The determinative issue on appeal is whether the trial court committed reversible error in failing to have a written waiver of counsel signed in compliance with § 600.-051, RSMo Supp. 1976. Section 600.051 reads as follows:

“1. Any judge of a court of competent jurisdiction may permit a waiver of counsel to be filed in any criminal case wherein a defendant may receive a jail sentence or confinement if the court first determines that defendant has made a knowledgeable and intelligent waiver of the right to assistance of counsel and the waiver is signed before and witnessed by the judge or clerk of the court, providing further that the waiver contains at least the following information which the defendant has read or which has been read to the defendant before the signing thereof:
“(1) That the defendant has been charged with the offense of (nature of charge must be inserted before signing);
“(2) That the defendant has a right to a trial on the charge and further that the defendant has a right to a trial by a jury;
“(3) That the maximum possible sentence on the charge is . imprisonment in jail and a fine in the amount of . dollars or by both imprisonment and fine. That the minimum possible sentence is imprisonment in jail or by a fine in the amount of . dollars or by both such confinement and fine;
“(4) That the defendant is aware that any recommendations by a prosecuting attorney or other prosecuting official are not binding on the judge and that any such recommendations may or may not be accepted by [a] judge;
“(5) That if defendant pleads guilty or is found guilty of the charge, the judge is most likely to impose a sentence of confinement;
“(6) That, if indigent, and unable to employ an attorney, the defendant has a right to request the judge to appoint counsel to assist the defendant in his defense against the charge.
“2. Such a waiver and procedure shall be required if the judge imposes an order of probation, parole or suspension of sentence whereby subsequently the defendant may be ordered confined thereunder. Whenever a judge has permitted the filing of a waiver and a plea of guilty or a finding of guilty on the charge is entered and before the imposition of a sentence of confinement (including probation, parole or suspended sentence), the judge shall determine:
“(1) That if a plea of guilty has been entered, there is a factual basis for such a plea and, upon inquiry of defendant, that defendant is in fact guilty of the charge;
“(2) That the defendant does not know of the existence of any witness or of any fact, circumstances or evidence which was not presented to the court, which would exonerate defendant of the charge;
“(3) That upon inquiry of the prosecuting attorney there are no witnesses or evidence which would cast a reasonable doubt about the defendant’s guilt or defenses available to defendant not disclosed to the court.” (Emphasis ours).

Respondent asserts that appellant’s contention should not be sustained because the trial court’s failure to require a written waiver of the right to assistance of counsel was not prejudicial to appellant. We do not agree. To borrow from Judge McMillian in State v. Mills, 521 S.W.2d 495, 498 (Mo.App.1975), if the practice of judicially determining the prejudicial effect of failure to follow the rule mandated by § 600.051 is encouraged by subjective judicial constructions, the exceptions may well become better known than the rule itself. In other words, if we, the judiciary, constantly give currency to this practice, the value and benefits to be derived from use of the statutory written form will be lost.

In State v. Clifton, 549 S.W.2d 891 (Mo.App.1977) the Missouri Court of Appeals, St. Louis District, felt compelled to insist on strict compliance with Rule 20.02(a) of this Court insofar as it requires that prior to voir dire examination of the jury the court must read to the jury MAI-CR No. 1.02. We also feel compelled by § 600.051 to insist on strict compliance with its provisions. The General Assembly has fixed the signing of a written waiver form as being a necessary part of the procedure to be followed in a criminal case wherein a defendant may receive a jail sentence or confinement, and the courts must abide it.

We hold that since the effective date of § 600.051 (August 13,1976) the use of the written form prescribed therein has been mandatory and that failure to use the written form as mandated is reversible error. The judgment of the trial court is clearly erroneous. Rule 27.26(j).

The judgment is reversed and the cause remanded with directions to enter judgment setting aside the conviction and permitting withdrawal of plea, and for further proceedings thereafter according to law.

MORGAN, C. J., and FINCH, REND-LEN, SEILER and SIMEONE, JJ., concur.

BARDGETT, J., concurs in result.


source: Caselaw Access Project

author: SEILER, Judge.

license: Public Domain

text:
    Edward FIELDS, Jr., Movant-Appellant, v. STATE of Missouri.
    No. 60562.
    Supreme Court of Missouri, En Banc.
    Nov. 6, 1978.

      Terry Daley, Asst. Public Defender, Rol-la, for movant-appellant.
    Stanley Robinson, Asst. Atty. Gen., Jefferson City, for respondent.
   SEILER, Judge.

In 1975, appellant was convicted of rape and sentenced to twenty-five years imprisonment. The conviction was affirmed on appeal. State v. Fields, 538 S.W.2d 348 (Mo.App.1976). In 1976 and again in 1977, appellant filed pro se motions pursuant to rule 27.26 to vacate the sentence. Each motion was accompanied by a “motion for leave to appeal [sic] in Forma Pauperis.” These motions to appear in forma pauperis were denied in the trial court because the first motion did “not contain any allegation of error not contained in [appellant’s] motion for new trial and not presented and determined on appeal,” and because “all matters in [appellant’s second] motion under rule 27.26 were raised and ruled in the appeal.” Appellant did not appeal from either ruling. Appellant filed a third rule 27.26 motion stating the ground that “mov-ant was denied effective assistance of counsel.” This ground had not been alleged in appellant’s two previous motions. Appellant’s only stated reason for not having raised this ground in his previous motions was “ineffective assistance of counsel was not raised because I didn’t know or understand what could be raised on a 27.26 motion.” On February 28,1977, the trial court denied appellant’s third 27.26 motion without evidentiary hearing and appellant appealed.

Relying on Nolan v. State, 484 S.W.2d 273, 274 (Mo.1972), the court of appeals determined that a second or successive rule 27.26 motion is not to be entertained where the ground presented in the second or successive motion could have been raised in the first motion pursuant to rule 27.26(c) unless the movant alleges a reason or reasons which, if established by proof, would authorize a finding that he could not previously have presented these new grounds. Relying further upon Grant v. State, 486 S.W.2d 641, 643-44 (Mo.1972), the court of appeals held that the bare allegation of “lack of legal knowledge” is insufficient to authorize a finding that the movant could not have previously presented the new grounds in a previous rule 27.26 motion. See Careaga v. State, 552 S.W.2d 25, 27 (Mo.App.1977); Evans v. State, 545 S.W.2d 674, 675 (Mo.App.1976).

We granted transfer for the purpose of reviewing our procedures in respect of post-conviction motions to vacate sentence or judgment under rule 27.26, although we will dispose of the case as though here on original appeal. For reasons stated below, we reverse and remand.

I

Rule 27.26, originally adopted by this court in 1953, was “radically amended” in 1967, State v. Maxwell, 411 S.W.2d 237, 241 (Mo.1967), “after considerable study and is intended to provide a post-conviction procedure in accord with the principles enunciated in the so-called trilogy of Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 [(1963)], ... Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 [(1963)], and Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 [(1963)]. Further in keeping with the teachings of the trilogy, the amended rule is designed to discover and adjudicate all claims for relief in one application and avoid successive motions by requiring motions to be in questionnaire form and by providing for the appointment of counsel if the motion presents questions of law or issues of fact and the movant is shown to be indigent.” State v. Stidham, 415 S.W.2d 297, 298 (Mo. banc 1967).

A motion under the rule “ordinarily cannot be used as a substitute for direct appeal involving mere trial errors or as a substitute for a second appeal.” Rule 27.-26(b)(3). It is not the proper vehicle for the relitigation of a defendant’s guilt or innocence, Bradley v. State, 494 S.W.2d 45, 48 (Mo.1973); Robinson v. State, 491 S.W.2d 314, 315 (Mo.1973). Its “sole purpose . is to determine whether defendant’s original trial was violative of any constitutional requirements or if the judgment was otherwise void.” Wright v. State, 459 S.W.2d 370 (Mo.1970). It is, in short, a procedure designed to achieve a unitary and expeditious post-conviction review of alleged constitutional defects in the trial or sentence of a criminal defendant where the challenge to such defects has not been knowingly and voluntarily waived, Nickens v. State, 506 S.W.2d 381, 386 (Mo.1974), and the asserted defects have not been passed upon in a prior appeal. It is intended to bring a measure of resolution and finality to the criminal proceedings of this state.

The rule has been the subject of high praise as “the most enlightened postconviction procedure of any state”, Garton v. Swenson, 266 F.Supp. 726 (W.D.Mo.1967) to which “no greater success” in the structuring of a state postconviction can be compared. Lay, Post Conviction Remedies and the Overburdened Judiciary: Solutions Ahead, 3 Creighton L.Rev. 5, 21 (1970). By this court’s adoption of the amended rule, it “assumed complete responsibility for protecting constitutional rights in accordance with federal principles,” Anderson, Post-Conviction Relief in Missouri — Five Years Under Amended Rule 27.26, 38 Mo.L.Rev. 1, 43 (1973), embracing “state primacy” in the implementation and administration of guarantees of fair and just procedures as an integral part of our criminal law. See Case v. Nebraska, 381 U.S. 336, 344-45, 85 S.Ct. 1486, 14 L.Ed.2d 422 (1965) (Brennan, J., concurring).

“Both the individual criminal defendant and society have an interest in insuring that there will at some point be the certainty that comes with an end to litigation, and that attention will ultimately be focused not on whether a conviction was free from error but rather on whether the prisoner can be restored to a useful place in the community. It is with this interest in mind, as well as the desire to avoid confinements contrary to fundamental justice, that courts and legislatures have developed rules governing the availability of collateral relief.” Sanders v. United States, 373 U.S. 1, 24-25, 83 S.Ct. 1068, 1082, 10 L.Ed.2d 148 (1963) (Harlan, J., dissenting); See also Schneckloth v. Bustamonte, 412 U.S. 218, 256-66, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (Powell, J., concurring). Our experience in Missouri is no exception.

However praiseworthy and philosophically sound our amended rule 27.26 may be, its implementation and the practice under it have been confused by the plethora of appellate judicial opinions which construe the application of the rule in various circumstances. See Anderson, supra, 38 Mo.L.Rev. at 2-3. Any cursory glance at West Publishing Company’s General Digest (covering all jurisdictions) under the relevant key number reveals an overwhelming preponderance of Missouri cases construing the law of post-conviction relief. In 1968, the year following the adoption of the amended rule, the number of reported appellate opinions was 20; in 1969 the number was 54. Last year (1977) the number of rule 27.26 appeals reported was 96.

There are, no doubt, many reasons for this high volume of appellate cases. First and foremost, appeal from the denial of a motion to vacate sentence or judgment under rule 27.26 is guaranteed as a matter of right, with costs and counsel for indigent prisoners provided by the state.. Rule 27.-26(j), (k) and (1). But a second reason for the volume, we can now ascertain, has been our own disinclination to address the numerous interstitial aspects of rule 27.26 procedures in a comprehensive and unified fashion. We have rather relied upon traditional discrete case-by-case adjudication in the belief that the structure of the rule itself together with the policy and attitude for which it stands would yield concise and comprehensible procedural guidelines. This has not been the case. In one exception to that approach, the court in Smith v. State, 513 S.W.2d 407 (Mo. banc 1974), cert. denied, 420 U.S. 911, 95 S.Ct. 832, 42 L.Ed.2d 841 (1975), set forth two procedural guidelines to which petitioners and lower courts have been held since its promulgation. The first stated that “[a] 27.26 movant, in order to be entitled to an evidentiary hearing, must plead facts, not conclusions, which, if true, would entitle him to relief and must show that such factual allegations are not refuted by . [the record].” Id. at 411. The other guidelines concerned the need for findings of fact and conclusions of law by the trial court following a motion to vacate sentence or judgment under rule 27.26(i). There this court said that a trial court’s sustaining of the state’s motion to dismiss the 27.26 motion “was equivalent to findings and conclusions in accordance with the grounds . . set out in that motion [to dismiss].” Id. at 412.

By this ruling the majority in Smith sought, no doubt, to expedite and bring to some conclusion the post-conviction procedure, a worthy goal. However, the resulting application of Smith and that of its progeny, e. g. Hogshooter v. State, 514 S.W.2d 109 (Mo.App.1974), have not, in our observation, had their intended effect. Rather, the requirements for lawyerlike pleadings for pro se movants who are not permitted an appointed lawyer unless an evidentiary hearing is required, Loflin v. State, 492 S.W.2d 770, 772-73 (Mo. banc 1973); Winston v. State, 533 S.W.2d 709, 715 (Mo.App.1976), and the failure to require specific findings of fact and conclusions of law in each case as had been previously required, Hamilton v. State, 490 S.W.2d 363, 364 (Mo.1973); Veneri v. State, 474 S.W.2d 833, 841 (Mo.1971); Durham v. State, 473 S.W.2d 397, 398 (Mo.1971); Larson v. State, 437 S.W.2d 67, 69 (Mo.1969); Drew v. State, 436 S.W.2d 727, 730 (Mo.1969); Gerberding v. State, 433 S.W.2d 820, 824 (Mo.1968); Forbes v. State, 511 S.W.2d 894, 895-96 (Mo.App.1974), have had an effect contrary to that which was intended. Our observation is that delay and confusion rather than speed and finality have been occasioned by Smith, and an excessive number of appeals have resulted from summary denials of pro se motions to vacate sentence or judgment without the appointment of counsel, evidentiary hearings, or specific findings of fact and conclusions of law. We have concluded, therefore, that Smith should be overruled insofar as it conflicts with our holding herein.

Nearly all motions to vacate under rule 27.26 are filed by prisoners without the services or assistance of counsel. These pro se movants are often aided by fellow prisoners colloquially known as “jailhouse lawyers” who assist other inmates in the disposition of their legal affairs. Yet with or without such assistance, the motions are often inarticulate and inartful expressions of frustration.

The proper agent to assist the court in the search to determine whether a claimed ground for relief is meritorious and deserving of relief or not meritorious or perhaps even frivolous is an attorney, appointed pursuant to rule 27.26(h). Under that rule counsel is obligated “to ascertain from the prisoner whether he had included all grounds known to the prisoner as a basis for attacking the judgment and sentence and to amend the motion to include any claims not already included.” This obligation includes amending the motion, if necessary, more fully and accurately to allege the grounds which petitioner has undertaken to state in his pro se motion.

Rule 27.26(h) states that counsel shall be appointed “[i]f a motion presents questions of law or issues of fact.” This did not state a per se rule for appointment of counsel for indigent movants, but it contemplated that counsel would be required in most cases. This was recognized during the early days under the amended rule. We stated in State v. Garner, 412 S.W.2d 155, 157 (Mo.1967), that “we cannot help but observe that assistance of counsel in preparing and filing an amended motion adequately stating all issues involved, in presenting the evidence in a clear and orderly manner, and finally in briefing the case as contemplated by applicable rules would make much easier the task of the trial and appellate courts in resolving the questions involved.” However, there appears to have developed a tendency to appoint counsel less frequently. Under Smith, an attorney was to be appointed only if the pro se motion actually pleaded facts which, if true, would entitle him to relief. It appears that frequently the determination of whether to appoint counsel was deemed to be identical to the test as to whether to hold an evidentiary hearing under rule 27.26(e) and was determined simultaneously.

This is not what the rule intended. Rather, it provides a three-step process. The first step is the transmission of a copy of the 27.26 motion to the prosecuting attorney by the circuit clerk. Second is the determination of whether appointment of counsel is required. The third and final step is the prompt scheduling of a hearing “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, . . . .” The determination as to the appointment of counsel is thus meant to precede the determination as to whether or not to hold a hearing.

As previously indicated, the case-by-case method of determining whether to appoint counsel for indigent pro se movants under rule 27.26 has not proved to be satisfactory. Consequently, we have decided to adopt a per se rule. We have had such a rule with respect to appeals in 27.26 cases. Counsel is appointed for indigents in all such cases. We now will do likewise at the trial level. This will result in counsel being appointed after an indigent movant files a pro se motion under rule 27.26. Such counsel, after sufficient communication with movant, will have the opportunity and obligation to amend the motion to state factually in lawyerlike fashion the basis for all claims for relief under rule 27.26 which movant claims to have. After that has been done, the trial court will proceed to the third step of determining whether, on the basis of the amended motion, an eviden-tiary hearing is required. In ruling on the motion, whether with or without an eviden-tiary hearing, the court shall follow rule 27.26(i) and make findings of fact and conclusions of law on all issues presented. Only if that is done can the appellate court make the kind of review contemplated by rule 27.26(j). A mere recital or statement that the motion, files and records conclusively show that movant is entitled to no relief will not constitute compliance with rule 27.26(i). Nor will findings and conclusions be supplied by implication from the trial court’s ruling. Specific findings and conclusions are contemplated and required.

Finality is a central aspect of rule 27.26. If a meritorious collateral claim exists, the rule is designed to bring it to the fore promptly and cogently. No one, least of all prisoners, stand to gain from a prolonged, cumbersome, repetitive post-conviction process. That is why rule 27.26(c) requires that every motion seeking relief under the rule “include every ground known to the prisoner for vacating, setting aside or correcting his conviction and sentence”, said allegations to be verified in writing by the prisoner. This is why rule 27.26(d) requires that the “sentencing court shall not entertain a second or successive motion for relief on behalf of the prisoner where the ground presented in the subsequent application was raised and determined adversely to the applicant on the prior application or where the ground presented is new but could have been raised in the prior motion.” This strict aspect of finality in post-conviction proceedings is one important reason why we have required specific findings of fact and conclusions of law in each 27.26 disposition pursuant to rule 27.26(i). See McCormick v. State, 502 S.W.2d 324, 326 (Mo.1973); Duncan v. State, 524 S.W.2d 140, 142 (Mo.App.1975); Roulette v. State, 504 S.W.2d 331, 332 (Mo.App.1973).

Even when a change is made effective prospectively only, as this rule change is, it is customary to grant relief to the litigant whose case brought about the change made by the opinion. Accordingly, we reverse and remand this case for appointment of counsel and the opportunity to amend, an opportunity which movant has not had in his efforts to obtain relief under rule 27.26.

MORGAN, C. J., and BARDGETT, FINCH, DONNELLY and RENDLEN, JJ., concur.

SIMEONE, J., not participating because not a member of the Court when cause was submitted.

      . The complete text of the former rule 27.26, prior to the amendment of January 9, 1967, read as follows:
      A prisoner in custody under sentence and claiming a right to being released on the ground that such sentence was imposed in violation of the Constitution and laws of this State or the United States, or that the court imposing such sentence was without jurisdiction to do so, or that such sentence was in excess of the maximum sentence authorized by law or is otherwise subject to collateral attack, may file a motion at any time in the court which imposed such sentence to vacate, set aside or correct the same. Unless the motion and the files and records of the case shows to the satisfaction of the court that the prisoner is entitled to no relief, the court shall cause notice thereof to be served on the prosecuting attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction or that the sentence imposed was illegal or otherwise subject to collateral attack, or that there was such a denial or infringement of the constitutional rights of the prisoner as to render the judgment subject to collateral attack, the court shall vacate and set aside the judgment and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate. The court need not entertain a second motion or successive motions for similar relief on behalf of the same prisoner. An order sustaining or overruling a motion filed under the provisions of this Rule shall be deemed a final judgment within the purview of Rules 28.03 and 28.04.

      . Amended rule 27.26 reads as follows:
      27.26 Sentence Unlawful — Motion to Vacate or Correct — Form and Scope of Motion — Notice to Prosecuting Attorney — Appointment of Counsel — Hearing—Order—Effect of Order — Appeal
      A prisoner in custody under sentence and claiming a right to be released on the ground that such sentence was imposed in violation of the Constitution and laws of this State or the United States, or that the court imposing such sentence was without jurisdiction to do so, or that such sentence was in excess of the maximum sentence authorized by law or is otherwise subject to collateral attack, may file a motion at any time in the court which imposed such sentence to vacate, set aside or correct the same. The following procedure shall be applicable to motions filed pursuant to this Rule:
      (a)Nature of Remedy. This Rule is intended to provide the exclusive procedure which shall be followed when a prisoner in custody seeks relief on the basis of any of the attacks on a sentence enumerated above. The motion seeking such relief shall be filed in the court where the sentence was imposed. This Rule does not suspend the rights available by habeas corpus but rather prescribes the procedure to be followed in seeking the enforcement of those rights. It includes all relief heretofore available in any court by habeas corpus when used for the purpose of seeking to vacate, set aside or correct a sentence, plus relief not available by habeas corpus. A motion filed hereunder is an independent civil action which should be separately docketed. The procedure before the trial court and on appeal is governed by the Rules of Civil Procedure insofar as applicable. No cost deposit shall be required.
      (b) When Remedy May Be Invoked.
      (1) The provisions of this Rule may be invoked only by one in custody claiming the right to have a sentence vacated, set aside or corrected.
      (2) A motion to vacate, set aside or correct a sentence cannot be maintained while an appeal from the conviction and sentence is pending or during the time within which an appeal may be perfected.
      (3) A proceeding under this Rule ordinarily cannot be used as a substitute for direct appeal involving mere trial errors or as a substitute for a second appeal. Mere trial errors are to be corrected by direct appeal, but trial errors affecting constitutional rights may be raised even though the error could have been raised on appeal.
      (c) Form and Sufficiency of Motion. A motion to vacate a sentence must be submitted on a form substantially in compliance with the form appended hereto. The motion shall include every ground known to the prisoner for vacating, setting aside or correcting his conviction and sentence. The prisoner shall verify the correctness of the motion, including the fact that he has recited all claims known to him.
      (d) Successive Motions. The sentencing court shall not entertain a second or successive motion for relief on behalf of the prisoner where the ground presented in the subsequent application was raised and determined adversely to the applicant on the prior application or where the ground presented is new but could have been raised in the prior motion pursuant to the provisions of subsection (c) of this Rule. The burden shall be on the prisoner to establish that any new ground raised in a second motion could not have been raised by him in the prior motion.
      (e) Hearing. As soon as a motion hereunder is received by the circuit clerk, he shall notify the prosecuting attorney and transmit a copy thereof to him. If appointment of counsel is required under (h) of this Rule, such counsel shall be appointed immediately and a copy of the motion transmitted to him. Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, a prompt hearing thereon shall be held. “Prompt” means as soon as reasonably possible considering other urgent business of the court. This hearing shall be an evidentiary hearing if issues of fact are raised in the motion, and if the allegations thereof directly contradict the verity of records of the court, that issue shall be determined in the evidentiary hearing. All proceedings on the motion shall be recorded by the official court reporter.
      (f) Burden of Proof. The prisoner has the burden of establishing his grounds for relief by a preponderance of the evidence.
      (g) Presence of Prisoner. The prisoner shall be produced at any evidentiary hearing on a motion attacking a sentence where there are substantial issues of fact.
      (h) Right to Counsel. If a motion presents questions of law or issues of fact, the court shall appoint counsel immediately to assist the prisoner if he is an indigent person. Counsel shall be given a reasonable time to confer with the prisoner and to amend the motion filed hereunder if desired. Counsel shall have the duty to ascertain from the prisoner whether he has included all grounds known to the prisoner as a basis for attacking the judgment and sentence and to amend the motion to include any claims not already included. If, for good cause shown, appointed counsel is permitted to withdraw, the trial court shall appoint new counsel in his stead.
      (i) Judgment. The court shall make findings of fact and conclusions of law on all issues presented, whether or not a hearing is held. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was illegal or otherwise subject to collateral attack, or that there was such a denial or infringement of the constitutional rights of the prisoner as to render the judgment subject to collateral attack, the court shall vacate and set aside the judgment and shall discharge the prisoner or resen-tence him or grant a new trial or correct the sentence as may appear appropriate.
      (j) Appeal. An order sustaining or overruling a motion filed under the provisions of this Rule shall be deemed a final judgment for purposes of appeal by the prisoner or by the State. An appeal may be taken from the order entered on the motion as in a civil case as authorized by § 512.020, RSMo 1959, V.A. M.S. Appellate review shall be limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous.
      (k) Costs. If the trial court finds that a prisoner desiring to appeal is an indigent person, it shall authorize an appeal in forma pauperis and furnish without cost the transcript of such proceeding for appellate review. The trial court, when the appeal is taken, shall order the official court reporter to prepare the transcript promptly. If the trial court finds adversely to a prisoner on the issue of indigency, it shall certify and transmit to the appellate court a transcript of the evidence on that issue only so as to permit review of that issue by the appellate court.
      (l) Counsel on Appeal. If a prisoner desires to appeal and contends he is without means to employ counsel to perfect the appeal, the trial court, if satisfied that the prisoner is an indigent person, shall appoint competent counsel to conduct such appeal. Such counsel, may, in the discretion of the court, be the same counsel who represented the prisoner in the trial court on said motion. If, for good cause shown, appointed counsel is permitted to withdraw, the trial court shall appoint new counsel in his stead.

      . Appointed counsel has the duties and responsibilities enjoined upon him under the rule and petitioner has the correlative opportunity thereby provided to make a full disclosure of every fact he knows concerning his case to one who by his legal training is able to appreciate their legal significance. Additionally, an attorney is able by training and experience to ask probing questions and thereby elicit important information which the petitioner might otherwise fail to disclose through ignorance. These are important factors in enabling a strong measure of finality to be given the trial court’s ruling in a 27.26 case where counsel has been appointed. See the discussion on finality and successive motions, infra.

      . An appropriate amendment of rule 27.26 will be made and published. Meanwhile, the directions contained herein are to be followed.


author: PRITCHARD, Judge.

text:
    Marinda M. BECK and Donald R. Beck, Respondents, v. James R. STRONG and Frances Sue Strong, Appellants.
    No. KCD 29286.
    Missouri Court of Appeals, Kansas City District.
    Aug. 28, 1978.
    Motion for Rehearing Denied Oct. 10, 1978.

      James W. Gallaher, Jefferson City (Barry, Neff & Gallaher, Jefferson City, of counsel), for appellants.
    Robert L. Hyder, Jefferson City (Hyder & McHenry, Jefferson City, of counsel), for respondents.
    Before WELBORN, Special Judge, Presiding, HIGGINS, Special Judge, and PRITCHARD, J.
   PRITCHARD, Judge.

The issues are whether respondents are entitled to a decree of quiet title, and damages, as was the judgment of the trial court, or whether appellants are entitled to a decree of specific performance of a contract for deed of April 19, 1960, and to a decree of continued validity of a lease, with alternative options to purchase or to continue the lease for an additional 89 years, which lease was entered into September 10, 1963.

The properties involved lie along Industrial Drive and (apparently) along Jaycee Drive in the western part of Jefferson City, Missouri. The following plat, plaintiffs’ Exhibit 2, which was in evidence, may be helpful in the understanding of the area, and the transactions involved:

The contract for deed, entered into April 19, 1960, by Arthur H. Beck [who died May, 1966] and his wife, Marinda, with appellants covered, by courses and distances description, the western portion of the property, in which Tract 1 is denominated a part, for a price of $22,500.00, payable 5 years after date, with 6% interest per annum, payable $112.50 per month, with the whole of the principal amount being due and payable at the end of the 5 year period, at which time the sellers were to execute and deliver a warranty deed. The contract called for an option to lease the entire tract for 99 years if exercised within one year from the contract date, but that option was never exercised. The contract was never consummated within the 5 year period, appellant, James R. Strong, acknowledging that he had never paid the purchase price of $22,-500.00. He had, however, as admitted by respondents, continued to pay the $112.50 monthly interest, up to shortly before trial, which began on October 8, 1975.

These further facts, as to Tract 1, are in evidence: The Strongs entered the property, and constructed, at their expense, a building complex, which at trial housed Brady’s Glass and Paint, The Drapery Place, Missouri Highway Commission Project Office, and the University of Missouri Extension Service. In these matters, Mr. Beck and Strong were engaged in some kind of very loose joint enterprise for the development of the area, which, according to Strong, was his idea “of bringing a lot of contractors into one center, and this was my purpose.” Upon Tract 1, these deeds were executed: On September 11, 1964, Arthur H. and Marinda Beck executed a deed to Leonard Bauer and wife to about 60 feet fronting on Industrial Drive, and later, on March 15,1965, executed a roadway deed to the same parties. The consideration, about $6,300.00 for these tracts, was paid to the Strongs, and Marinda, as to this transaction, testified, “Q. Why would you have paid Jim Stron_ $6,300 if you felt he owed you $22,500, why wouldn’t you have credited that amount to what he owed you? A. Now, coming back to oral talk, this amount of money was supposed to be in this building, so Jim could put up that building. We were helping him out so he could get started.” Also, on March 15, 1965, the Becks conveyed to William Cure 109.15 feet on Industrial Drive, Strong receiving the proceeds. [On February 7, 1966, the Becks gave Cure a correction deed as to the description of the property.] On the same date, the Becks conveyed the south triangular portion of Tract 1 to James O. Hammen and wife for a stone mason business, Strong receiving the sale proceeds for both these tracts. Then, on February 7, 1966, the Becks conveyed a tract on Industrial Drive to Eugene L. Schenewerk and wife, Strong again receiving the proceeds of the sale, this being after the contract was due on April 20, 1965. Then, on August 22, 1966, Marinda, after Arthur’s death, signed the deed to Capital City Industrial Development Corporation (for the Interco building) for the area between the Hammen property and that of Bauer, Cure, Schenewerk and Strong. This deed recites that it is subject to easements of record “and rights granted to James R. and Sue Strong by an instrument dated April 19, 1960.” From the sale of all these properties, the Strongs received all of the purchase money totalling $36,-800.00, and the Becks never did make any demand for any of it. Strong arranged for the sales of all the properties, and paid income tax on the amounts received by him.

A sewer district was formed on Tracts 1 and 2, and on October 1, 1970, Marinda directly paid $3,900.00 assessment on it, then accepted, on advice of counsel, Strong’s note for that amount, payable with interest at $41.60 per month for 10 years. He has paid, and she has received, the monthly payments since November, 1970. Additionally, the Strongs have paid all of the taxes, insurance (and interest on loans) on all of the property of Tracts 1 and 2. Marinda acknowledged the receipt of the interest on the contract price, and that she deposited the funds and used them for household expenses.

According to Strong, in August, 1966, after Arthur died in May, he went to Ma-rinda and told her he had finally settled the deal with the Jefferson City Development Corporation and that he thought it would be a good time to pay her off on the property. “And, of course, it was about three months after Mr. Beck had died, and Mrs. Beck was still a little upset, a little emotional, and she asked that it not be done at this time. She said that Mr. Beck had thought very highly of me, and that she knew that he would want to leave the money in there, and that she would just prefer it this way, and my response was, ‘Well, when the Gibson tract [Tract 2] comes up, then, we will talk about it then if it is all right.’ And we visited, and that was the extent of that.” He formally advised her that he was ready to pay her the $22,500, immediately after he had received $20,500 from the Jefferson City Development Corporation for land which was owned by the Becks. Marinda’s version of this meeting was that she talked with Strong shortly after Mr. Beck’s death, and he expressed his bereavement, “And he wanted to know if I needed any money, and things like that, but we didn’t talk about settling up anything and, besides, I wasn’t in the physical condition to make any commitment.”

Donald R. Beck, son of Arthur and Ma-rinda, being a party to the lease upon Tract 2, met with Strong a year after Arthur’s death. There was had a very informal conversation in which Donald mentioned that “we had no contract on this property, and Jim said we ought to do something about it, and I agreed we ought to do something about it. I received no response.” In the summer of 1969, Donald again had a conversation with Strong, saying, “ ‘Jim, you do not have a lease on some of the property which you are presently occupying.’ ” Strong disagreed with him, and there was a discussion of some length, and Donald said, “that there were options involved in these contracts which hadn’t been taken up, and they might be confusing, and that I definitely felt we ought to sit down and get things straightened out. And he told me he liked things just the way they were, and proceeded to walk right out of the office.” The next contact was by telephone and a request was made for a meeting that week, for which there was no response. Then, upon counsel’s request, there was a meeting in September, 1974, but no resolution of the matters then occurred.

Contract for Deed, Tract 1

As noted, it is admitted by appellants that they did not, by notice, exercise their right to purchase under the contract for deed within the five year period, which expired about April 20, 1965. Time being of the essence is not expressly specified in the contract. 91 C.J.S. Vendor & Purchaser § 104 g., p. 1006; Branch v. Lee, 159 S.W.2d 677, 680[1-4] (Mo.1942). But even if it were, it may be waived. Prior to the time for performance was due, Arthur and Ma-rinda deeded their legal title to purchasers from the Strongs of portions of the property covered by the contract on four occasions: September 11, 1964, to the Bauers; a roadway deed to these same parties on March 15, 1965, coupled with a correction deed on February 7, 1966; on March 15, 1965, to the Hammens; and on February 7, 1966, a deed to the Schenewerks. Upon execution of the contract, the Strongs entered possession and made valuable building improvements upon the property, occupied by Brady’s Glass and Paint, The Drapery Place, Missouri Highway Commission, and the University of Missouri Extension Service. Not only did the Becks execute these deeds, but they permitted the Strongs to retain the sole proceeds upon all of them, and the Strongs collected the rentals on the buildings erected by them. Then, after Mr. Beck’s death, Marinda executed to the Capital City Industrial Development Corporation, a deed on August 22, 1966, to the remaining undeveloped area, again permitting the Strongs to retain the $20,500 purchase price. The Strongs, in the interim, and at all times, paid the taxes, insurance and development costs on all the property contained in the contract for deed, having only the equitable title thereto. Not only is the waiver here that of permitting the Strongs to expend money in improving Tract 1, Rogers v. Gruber, 351 Mo. 1033, 174 S.W.2d 830, 831[1, 2] (1943), but importantly, the Becks accepted the monthly interest payments on the purchase price, thereby treating it as due them, even up to shortly before trial. In this situation, it was incumbent upon the Becks to give the Strongs a notice of insistence upon the performance of the contract, and to give them a reasonable time to perform. This was not done. See 92 C.J.S. Vendor & Purchaser § 256, p. 122. What has here happened is that the Becks have assented to a course of action with reference to the contract, which shows that they regarded the Strongs’ rights thereunder as fully subsisting, notwithstanding the existing default in the payment of the purchase price, “[they] cannot suddenly, and without warning, declare a forfeiture, or maintain that one has automatically occurred.” Bogad v. Wachter, 365 Mo. 426, 283 S.W.2d 609, 614[4] (1955). See also Rice v. Griffith, 144 S.W.2d 837, 845[12-18] (Mo.App.1940), [rev’d, other grounds, 349 Mo. 373, 161 S.W.2d 220]. Forfeitures are not favored. Bogad, supra; Branch v. Lee, supra, and that is exactly what would happen here if respondents are to prevail, to say nothing of the unjust enrichment they would enjoy if they should be permitted to retain the valuable improvements made at the Strongs’ expense over these more than 10 years. The Becks have acquiesced in the Strongs’ treatment of the property as their own. See 3 Pomer-oy’s Equity Jurisprudence, § 818, p. 250, where acquiescence as an estoppel to rights of property or of contract is discussed: “A most important application includes all cases were (sic) an owner of property, A, stands by and knowingly permits another person, B, to deal with the property as though it were his, or as though he were rightfully dealing with it, without interposing any objection, as by expending money upon it, making improvements, erecting buildings, and the like.” The Becks here will be made whole by the receipt of the contract purchase price of the property, made when, as the evidence shows, it was unimproved. Under all of these facts, and under the foregoing cases and authority, there can be no other conclusion than that the trial court erroneously applied the law, and the judgment, as to Tract 1, must be reversed and the case remanded.

Lease, Tract 2

On September 10, 1963, Arthur EL, Ma-rinda M., and Donald Beck, made a lease for a 10 year term to the Strongs on Tract 2, known as the Gibson or Dixon Discount Store. The rental was initially specified at $150.00 per month, and was to increase to $200.00 per month for the first 5 years after the Becks had provided $10,000.00 for work to be done on the premises, which money was paid. The rent was to increase $10.00 per month each 5 year period, but that increase was never demanded of or paid by the Strongs. Upon giving a 60 day written notice prior to the expiration of the first 10 year term, Strong was given the right to renew it for an additional 89 years (making a grand total of 99 years). For the additional lease period, the rent was to increase $10.00 per month each five year period. No written notice was given by Strongs to Becks of their desire to lease the property for the additional 89 years, but the Strongs continued to pay the $200.00 per month, which Marinda and Donald accepted without protest, after the expiration of the lease on September 10, 1973, up to shortly before trial.

The lease also granted to the Strongs the right to purchase the property for $43,000 upon the expiration of the original or base 10 year term by giving the notice in the same manner as required by the option to extend or renew, but the Strongs never did exercise the option to purchase by giving the written notice. The option to purchase is not in this case, therefore, and the only issue as to Tract 2 is whether the Becks, by acts, conduct and knowledge of the circumstances, waived the requirement of the lease that 60 days written notice be given by the Strongs of intention to renew the lease for the additional 89 year term.

At Vol. I, American Law of Property, § 3.86, p. 368, it is said, “Where the lease requires written notice the giving of the prescribed notice in unequivocal terms is a condition precedent to renewal of the term. As with other conditions precedent, however, the giving of written notice may be waived. When the lease states that notice of the election to renew is to be given a certain time before the end of the original period of the lease, the lessee loses his right to renew if notice is not given within that period. Equitable relief is generally refused in such cases, although it has been given in a few cases where failure to give it was not due to wilful or gross neglect, the delay was slight, the loss to the lessor was small, and the termination of the lease would have worked a great hardship on the lessee.” [Italics added.] At 51C C.J.S., Landlord and Tenant § 62(3)(b), p. 200, it is said, “The provisions of a lease requiring notice from the lessee of an election or intention to renew or extend the term are for the benefit of the lessor and therefore the notice itself, or any other matter going to the sufficiency thereof, may be waived. A requirement of written notice may be waived by parol, and a waiver of notice may be express or may be inferred from the conduct of the parties.” [Italics added.] The Missouri law is the same as to the option to renew being for the benefit of the lessor, and that it may be waived by him. Pelligreen v. Century Furniture & Appliance Co., 524 S.W.2d 168, 171[8-10] (Mo.App.1975), and cases cited.

According to the testimony of Strong, as early as August, 1966, the matter of deferring payment of the purchase price on Tract 1 until the Gibson lease tract was to be closed was discussed. Marinda acknowledged that money was discussed at that time. This testimony shows that there was an intention to exercise the options under the lease, either to purchase it (that option not having been exercised), or to renew the lease for an additional 89 years. In 1970, Marinda accepted a note from Strong in payment of the sewer district improvements on both Tracts 1 and 2, which note was payable in installments for 10 years, or 7 years beyond the date of the expiration of the lease in September, 1973. This shows the intention of the parties that the lease would be renewed after its expiration date. Importantly, the Becks were aware not only that the Gibson-Dixon Discount Store building had been erected during the term of the lease, but that about the time of its expiration, the Top Brands catalog store building was erected. [Strong testified the building was commenced in September, 1973, and he spent $118,000 plus on it, owing therefor $117,000 to the Exchange Bank, due in 1983.] In this connection, Marinda testified: “Q. Now, were you aware that in 1973 Jim Strong placed a new building on the Gibson tract, Tract No. 2 shaded in blue? A. I heard the heavy equipment moving the dirt. Q. And to your recollection was it in September of 1973? A. I don’t remember that date. * * Q. Now, when you saw the Top Brands, what has now developed into the Top Brands building being erected, did you go to talk to Jim Strong? A. No. Q. Did you and Don discuss this matter? A. Among ourselves, yes. Q. Did you allow Jim Strong to continue to put the building — improve the land and put the building on the land even after the lease in your mind had expired? A. That was his hard luck. [Italics added.] Q. Now, did you continue to accept the rent of $200 per month through July, 1973 and through September of 1973? A. Yes. Q. And you have continued to accept that rent ever since? A. Being advised by the lawyer. Q. But you have accepted the rental checks and cashed them, is that true? A. Under the advice of the lawyer. Q. Do you recall signing any assignments to the Exchange Bank? A. Yes. Q. What effect did they have, in your estimation? A. So he was able to get a loan. Q. Did they work an extension of time, in your opinion, of the lease? A. Well, no.”

Upon much less persuasive facts concerning the acts and conduct of the parties to a lease, the court in Deane v. Mitchell, 312 Ky. 389, 227 S.W.2d 893 (Ky.App.1950), held that a waiver of a notice to renew the lease occurred. There, Dawson leased an adjoining building, and Deane knew that Dawson would be compelled to incur considerable expense in connecting the two buildings, which was incurred. “It was understood that the two buildings were to be used as one property by Dawson in the conduct of his business, and it is unthinkable that De-ane believed Dawson was leasing the second building and incurring this expense for the mere privilege of using the two buildings for the unexpired part of the first five year term, or for thirty-one days.” (Page 894[1, 2]) See also, Lingle v. Wainwright, 215 La. 117, 39 So.2d 843 (1949), where a landlord, after having received a late notice to renew from his tenant, remained silent and accepted increased rental for almost a year, was held to have waived his right to notice of renewal in accordance with the lease provision; Lakeside Dairies v. Gregersen, 217 La. 510, 46 So.2d 752, 756[1, 2] (1950); and see the cases collected: Anno. 44 A.L.R.2d 1359, 1373, § 8[a] and [b]. Note also 50 Am. Jur.2d, Landlord and Tenant, § 1186, p. 73, and pocket part.

In the Pelligreen case, supra, page 171[8-10], it is further said, “The general rule is that a holding over by the lessee and waiver of notice by the lessor combine to exercise an option to extend a lease. The law then implies a continuation of the original tenancy upon the same terms, conditions, and covenants as provided [in] the original lease. (Citing cases).” See also Blanchon, et al. v. Kellerstrass Distilling Corp., 200 Mo.App. 610, 208 S.W. 484, 486 (1919); Lewis v. Perry, 149 Mo. 257, 50 S.W. 821 (1899). In this state, there is no difference between an option for extension of a lease, and one for renewal thereof. Krall v. Light, 240 Mo.App. 480, 210 S.W.2d 739, 746[11-14] (1948).

In the argument portion of their brief, the Strongs request not only that this court rule that the lease has been extended, but also that the judgment be reversed and that the Fecks be ordered, to convey to them the land described as Tract 2 for the purchase price of $43,000. There is no evidence of any intention, gathered from the acts and conduct of the parties, that the option to purchase be exercised. Rather, the payment of rent and the acceptance thereof after expiration of the lease show only an exercise of the option to extend or renew it for an additional 89 years.

Under the facts here and the authority above cited and quoted, the lease must be held to have been extended, under the alternative option, for 89 years. The Becks could not sit silently by and permit the Strongs to erect valuable improvements which otherwise would be lost to them at great hardship, and with an unjust enrichment to the Becks. The Becks will not have been harmed by this ruling — they will have received what was originally bargained for. The equities are on the Strongs’ side, and equity will intervene to relieve them of any forfeiture because the enforcement of the notice provision would be unconscionable and result in hardship. 50 Am.Jur.2d, Landlord and Tenant, §§ 1187,1188, pp. 75, 76; Anno. 44 A.L.R.2d 1359, 1365, § 2.

Inasmuch as relief is to be granted the Strongs, it was error to grant the Becks $56,362.64 judgment under their prayer for accounting. It is true that the Becks accepted only $200.00 per month rent for the periods after the first five years to the date of trial, but there is no evidence, other than that, that they waived payment of the additional amounts. Nor is the recovery of the additional monthly rent due barred by limitation. §§ 516.100, 516.160, RSMo 1969; Haycraft v. Haycraft, 154 S.W.2d 617, 620[4] (Mo.App.1941). Upon remand, the additional rental due should be computed and paid by the Strongs.

The judgment upon Count I is reversed and the case is remanded with directions to enter a decree of specific performance to appellants upon their payment of the amounts due under the contract for deed as to Tract 1. The judgment upon Count I as to the lease upon Tract 2 is reversed and the case is remanded with directions that a decree be entered that the lease thereon, dated September 10, 1963, is extended for 89 years after September 10,1973, upon the terms and conditions specified in the lease. The money judgment upon Count II is reversed except that the additional rental amounts shall be computed and a new judgment entered thereon for respondents and against appellants.

All concur.


author: BILLINGS, Chief Judge.

text:
    ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Plaintiff-Respondent, v. MAYOR’S COMMISSION ON HUMAN RIGHTS AND COMMUNITY RELATIONS OF the CITY OF SPRINGFIELD, Missouri, Defendant-Appellant.
    No. 10669.
    Missouri Court of Appeals, Springfield District, En Banc.
    Sept. 18, 1978.
    Motion for Rehearing or Transfer Denied Oct. 10, 1978.

      Dennis T. Rathmann, St. Louis, C. Wallace Walter, Mann, Walter, Burkart, Weathers & Walter, Springfield, for plaintiff-respondent.
    Howard C. Wright, Jr., Springfield, for defendant-appellant.
   BILLINGS, Chief Judge.

The Circuit Court of Greene County determined defendant Mayor’s Commission on Human Rights and Community Relations of the City of Springfield, Missouri, did not have jurisdiction of a complaint of alleged racial discrimination filed by Richard Patterson, former employee of plaintiff St. Louis-San Francisco Railway Company, and made absolute a preliminary rule in prohibition. We affirm.

Patterson was dismissed from plaintiff’s employment November 21, 1975. His complaint of alleged discrimination was filed March 17, 1976. Thereafter, defendant sought to subpoena certain of plaintiff’s personnel and records. Plaintiff filed its petition for a writ of prohibition, contending Patterson had not timely filed his complaint and defendant did not have jurisdiction over the subject matter or plaintiff.

The Springfield City Code § 12A-7 provides that “A complaint . . . shall be filed within sixty (60) days after the alleged discriminatory practice occurred.” Patterson’s complaint was based on his November 21, 1975, discharge by plaintiff and having been filed 117 days after the alleged discriminatory act it was not timely filed and defendant acquired no jurisdiction.

The timely filing of a charge of discrimination is a jurisdictional prerequisite to action by the agency charged with enforcement. Smith v. Office of Economic Opportunity for the State of Arkansas, 538 F.2d 226 (8th Cir. 1976); Greene v. Carter Carburetor Co., 532 F.2d 125 (8th Cir. 1976); Olson v. Rembrandt Printing Co., 511 F.2d 1228 (8th Cir. 1975).

The instant ordinance creates a right and liability which do not exist at common law and prescribes the remedy. The remedy is an integral part of the right and the requirements of the ordinance, including the time limitation for the filing of a complaint, must be strictly followed or the right and corresponding liability ends. Not only is the remedy no longer available, but the right itself is extinguished. Guy v. Robbins & Myers, Inc., 525 F.2d 124 (6th Cir. 1975).

The Springfield ordinance mandates a filing of an alleged discriminatory complaint within 60 days of the act complained of, and without such the Mayor’s Commission has no jurisdiction to proceed. And, contrary to defendant’s contention, this jurisdictional requirement was not tolled during the pendency of the unsuccessful grievance the former employee filed through his union. Guy v. Robbins & Myers, Inc., supra. Thus, defendant’s attempt to subpoena plaintiff’s personnel and records was in excess of the jurisdiction conferred by the ordinance.

“The use of the writ of prohibition is not confined to courts alleged to be exceeding their jurisdiction. It is frequently used to prevent boards, commissions, and other public bodies exercising quasi judicial powers from the doing of unauthorized acts or acts in excess of the authority vested in them.” State ex rel. Atkins v. Missouri State Board of Accountancy, 351 S.W.2d 483, 489 (Mo.App.1961). And, prohibition will lie to prevent a court from enforcing obedience to a subpoena duces tecum where the subpoena in question is illegal upon its face and where an attempt to enforce such subpoena would call for the exercise of a purported power clearly in excess of the court’s jurisdiction. State ex rel. Burke v. Scott, 364 Mo. 420, 262 S.W.2d 614 (Mo. banc 1953).

Chapter 12A of the Springfield City Code confers substantial powers on the Mayor’s Commission to deal with complaints of unfair employment practices. Its power to investigate complaints includes the right of access to the premises, records, documents, individuals or other evidence or possible sources of evidence to copy and record materials and take statements and testimony. The commission has power of subpoena for investigation and hearing purposes. After reasonable notice of time, place and date to the parties, the commission may hold a hearing on the complaint, where the parties may appear with legal counsel, present evidence and cross-examine witnesses, with all testimony being taken under oath. It is authorized to issue cease and desist orders and to take affirmative action reinstating or upgrading employees, with or without back pay, to restore membership in any respondent labor organization or to take such action as will effectuate the purposes of the ordinance. A party may seek judicial review of a commission order, and the commission may seek enforcement of its order in Greene County circuit court. The Springfield city attorney is authorized to bring proceedings in municipal court for punishment of any person violating the ordinance. A person interfering with the performance of the commission or failing to obey process issued by the commission requiring attendance or production of documents at a hearing is subject to a $500 fine, 180 days imprisonment or both.

Here, defendant’s quasi-judicial jurisdiction over alleged discriminatory acts stems from the ordinance. But in order to invoke defendant’s jurisdiction, a complaint is required to be lodged within 60 days after the alleged discriminatory practice occurred. Without a timely complaint, the defendant had no jurisdiction and its attempt to compel plaintiff’s personnel to appear and testify and produce records was unauthorized and in excess of the powers conferred by the ordinance. The fact that the ordinance also provides for a right to appeal does not negate prohibition in this case. An appeal would not prevent the expense, vexation and annoyance of plaintiff’s compliance with the subpoenas; the question on appeal would be merely whether or not the defendant was acting without authority in issuing the subpoenas; and appeal would not be an adequate remedy. Dahlberg v. Fisse, 328 Mo. 213, 40 S.W.2d 606 (1931).

The judgment is affirmed.

All concur.

      . The ordinance also specifically limits the time within which to conduct a hearing on a complaint. Sec. 12A-9 first limits the investigation phase by the commission to 60 days and then provides for a hearing but “. . . in no event shall the hearing before the commission be held more than seventy-five (75) days from the date of the filing of the original complaint.” The subpoenas ordered named individuals, employees of Frisco, to appear and testify, and certain documents be produced, before the commission on September 8, 1976, nearly six months after Patterson had filed his complaint. (Our emphasis)


author: SHANGLER, Presiding Judge.

text:
    Leeta Ruth BURCHETT (Huisenga), Appellant-Respondent, v. Billie Gene BURCHETT, Respondent-Appellant. Billie Gene BURCHETT, Respondent-Appellant, v. Leeta Ruth BURCHETT (Huisenga), Appellant-Respondent.
    Nos. KCD 29509, 29526.
    Missouri Court of Appeals, Kansas City District.
    Oct. 2, 1978.

      Alvin D. Shapiro, Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, for respondent-appellant.
    Jack A. Lewis, Chancellor & Lewis, North Kansas City, for appellant-respondent.
    Before SHANGLER, P. J., and SWOF-FORD, C. J., and WASSERSTROM, J.
   SHANGLER, Presiding Judge.

These appeals are from a judgment which vacated a prior default judgment to modify a custody award. The order of modification rested on service by publication which issued on the affidavit of the husband that the wife was not amenable to personal service within the state because she had absented herself from her usual place of abode and her address was otherwise unknown to him. The judgment by default was vacated on the motion of the wife, understood by the court as a writ of coram nobis, and rests on the determination that the husband made no such diligent effort to locate and notify the wife of the pending action. The judgment also awards temporary custody of the children to the father pending adjudication of a separate motion to change custody and also orders the husband to pay the wife attorney fees and suit money incidental to the proceeding to vacate the default judgment.

The wife appeals from the judgment which grants the husband temporary custody of the children. The husband cross-appeals from the vacation of the prior judgment and from the order for payment of attorney fees.

The husband contests the vacation of the default judgment on the premise that a proceeding to modify custody merely exercises the continued jurisdiction the court acquired over the parties and the res by virtue of the original decree. He argues that the wife engaged that jurisdiction by her petition for divorce some years earlier and, by his perceptions, “the court has at all times had personal jurisdiction over her.” This contention suggests that the formal statutory mode of service of process was superfluous to submit the wife to the judgment of the court and so, in any event, whatever insufficiency attended the publication notice could not affect the validity of the adjudication entered.

It is properly stated that a final judgment in divorce or dissolution of marriage does not divest a court of continued jurisdiction to modify that decree as to maintenance, support or custody. Sections 452.370 and 452.410, RSMo Supp. 1974; Greene v. Greene, 368 S.W.2d 426, 428[1] (Mo.1963). The jurisdiction retained by the court which renders a domestic relations decree, however, although exclusive as to such matters, operates only on changed circumstances. Hayes v. Hayes, 363 Mo. 583, 252 S.W.2d 323, 328[4] (1952). A motion to modify a decree of custody, therefore, adjudicates new rights on new evidence and results in a new judgment from which a party aggrieved may appeal. Olson v. Olson, 184 S.W.2d 768, 772[4, 5] (Mo.App. 1945); North v. North, 389 Mo. 1226, 100 S.W.2d 582, 587[13—15] (1936). Thus, although a motion to modify a decree of custody continues from the original action, such a petition constitutes an independent proceeding so that notice to the party to be adversely affected is indispensible to valid judgment. Greene v. Greece, supra, l.c. 428[1-7]; Williamson v. Williamson, 331 S.W.2d 140, 142[1—2] (Mo.App.1960); In re Lipschitz, 466 S.W.2d 183, 185[1-3] (Mo.App.1971); Burgess v. Burgess, 239 Mo.App. 390, 190 S.W.2d 282, 284[1, 2] (1945).

The husband contends that only two days before the action was brought he personally told the wife he intended then to initiate proceedings to modify the custody award as to the children [whom he had taken into possession] so there was no duty for him to give further notice of what she already knew. Legal notice of the commencement of suit, however, means more than actual notice of the event. In re Marriage of Bradford, 557 S.W.2d 720, 729[16] (Mo.App.1977). Rather, the law requires that a party subject to adverse judgment shall be formally served by an officer of the court with process and statement of the claim [except for in cases of publication] and that formal proof of service be made part of the record of the proceedings. Rule 54. This ceremony accomplishes the purposes both of due process for notice and of the statute that the fact of notice shall not be subject to dispute. Williamson v. Williamson, 331 S.W.2d 140, 144[6] (Mo.App. 960); Miners’ Bank v. Kingston, 204 Mo. 687, 103 S.W. 27, 31 (1907).

The law treats a motion to modify a domestic relations decree not as an original action, however, but as a subsequent pleading within the terms of Rule 43.01(a) and predecessor § 506.100 so that summons in the usual form need not issue or be served. In re Lipschitz, 466 S.W.2d 183, 185[1-3] (Mo.App.1971). A reasonable notice sufficient to meet the requirements of due process nevertheless must be given to the party adversely affected — and on this issue the proponent of the motion has the burden to prove that the pleading and the time for hearing were imparted to the adversary. Greene v. Greene, 368 S.W.2d 426, 428[8, 9] (Mo.1963). And where the notice is attempted upon an attorney in the cause, the burden falls on the proponent to show that the relationship of attorney and client subsisted at the time of service. Burgess v. Burgess, supra, 190 S.W.2d, l.c. 284[3—4]. In this case, one notice was attempted by service of the motion papers upon Hammett, counsel for the wife at the original proceedings, but his affidavit disclaimed that he still represented her. The subsequent word of mouth that the father would seek modification of the custody award imparted to the wife some two days before institution of proceedings was equally ineffective as the legal notice expected by due process. Burgess v. Burgess, supra, l.c. 284[3—4]; Greene v. Greene, supra, l.c. 428; In re Marriage of Bradford, supra, l.c. 729[16]. The validity of the judgment rests, if at all, on the notice imparted by the service by publication ordered by the court under Rule 54.17 on the affidavit of the husband that the wife was not amenable to service within the state.

A judgment for the custody of children acts in rem, or at least quasi in rem, and may issue on service of process by publication. Rules 54.12 and 54.17; In re Marriage of Breen, 560 S.W.2d 358, 361[1,2] (Mo.App.1977). Where the children are physically before the forum their custody status is a res within the power of the court to adjudicate. Kennedy v. Carman, 471 S.W.2d 275, 288[4] (Mo.App.1971). The judgment by default which modified the custody of the children to the father, therefore, was presumptively valid. The action by the wife to set aside that judgment— treated by the court as a proceeding in eoram nobis — contends however, that the representations by the husband to induce service by publication that the wife could not be personally served within Missouri and that her address was unknown to him were untrue. The pleading contends, rather, that the husband was well aware of her presence or could have readily determined it for purpose of service.

The writ of error coram nobis was a remedy at common law to vacate a judgment which rested on a fact material to a valid adjudication, but erroneously assumed, and which if known, would have prevented jurisdiction to render the judgment. The formal writ has given way in our procedure to a simple motion to examine and correct, by evidence dehors the record, some error of fact upon which the adjudication rests. Cross v. Gould, 131 Mo.App. 585, 110 S.W. 672, 676 (1908); Crabtree v. Aetna Life Ins. Co., 341 Mo. 1173, 111 S.W.2d 103, 106[1-4] (1937). The remedy redresses a defect of jurisdiction, either from improper service or notice not of record, or from other “want of adherence to some prescribed rule or mode of proceeding” which denies a party a right. Casper v. Lee, 362 Mo. 927, 245 S.W.2d 132, 138 (Banc 1952); In re Jackson’s Will, 291 S.W.2d 214, 222[9—12] (Mo.App.1956). Accordingly, coram nobis will vacate a judgment on service by publication where the nonresideney of the defendant was proved by a false return — that “defendant cannot be found in the city” when in fact he was resident there. State ex rel. Hudson v. Heinrich, 14 Mo.App. 146 (1883).

The motion of the wife asserts a composite question of fact unknown to the court at rendition of judgment which, if proven, defeated the power of the court to proceed: that the actual knowledge of the husband of her address or his failure at honest effort to determine it bely the affidavit upon which the service by publication issued and resulted in failure of the process indispensible to valid judgment. The motion to set aside the judgment was sustained on the determination by the court that the husband was not diligent to find the wife as to justify publication or satisfy due process. The husband on this appeal contends the evidence shows his diligence sufficient to sustain the default judgment and shows also the lack of diligence of the wife to act on her actual knowledge of the impending proceeding so as to defeat her motion to vacate that judgment.

The evidence shows that in March of 1973, the marriage between them was dissolved and the custody of the two children, one boy and one girl, was awarded to the wife. The wife and children removed from Kansas City to Springfield, Missouri. During the next two years they used ten different residences and the children attended seven different schools. On March 20,1975, the husband brought the action to modify custody which was eventually rendered by default. The events which preceded that litigation — as well as the ambulations of the wife as they bear on the issue of known presence within Missouri for the purpose of service — are best described by this calendar:

March 9, 1975:
The wife and children are in residence at the Trails End Motel on Kearney Street in Springfield. The wife is listed in the telephone directory at that address. She is then employed at Johnson’s Economy Inn as a bartender. On that date she leaves for Oklahoma City to be married, but loses heart and later returns. She leaves the children for the week in the care of a friend, Mary Maddox, as babysitter. While in Oklahoma City, the wife finds an apartment and a new employment.
March 11, 1975:
Mary Maddox calls the wife in Oklahoma City to inform her that a juvenile officer has been summoned to inquire into the status of the children. The wife learns the husband is in Springfield with the children at the motel and speaks to him by telephone. The husband tells her he intends to return to Kansas City with the children and she persuades him to defer until she returns that Friday.
March 14, 1975:
On that Friday, the husband removes the children to Kansas City. That evening, the wife returns to Springfield and finds the children gone. She moves in with Rita Strops on Missouri Street in Springfield where she remains until the end of the month, and after a sojourn at the parental residence in Trenton, moves into a residence on South Franklin in Springfield which she then occupies with her present husband [Huisenga].
March 18, 1975:
The wife goes to the home of the husband in Kansas City to claim the children but he will not relinquish them and tells her, rather, that he intends to bring an action for custody. During this visit, the wife tells the children [by the testimony of the son] that she continues to be employed at Johnson’s Economy Inn. The wife on this visit gives the children the Strops address as her own [according to her testimony] and [according to the children] the wife gives them a St. Louis Street motel address as her temporary residence and [according to the son] that child transmits this address information to the father within two days. [The husband denies this communication.] The husband makes no inquiry of the wife as to her current address and acknowledges he “really doesn’t care.”
March 20, 1975:
The husband files the motion to modify custody of the two children and service of the action is attempted upon Attorney Hammett, counsel of record for the wife in the 1973 divorce proceeding.
March 21, 1975:
Attorney Hammett tries without success to locate the wife.
April 1, 1975:
The wife [at this approximate date] moves into the South Franklin Street residence and is joined there later by her prospective husband [Huisenga] whom she marries on June 21, 1975.
April 22, 1975:
Attorney Hammett files affidavit in the cause which asserts unsuccessful effort to notify the wife of the action and which disclaims authority to accept service for the wife. He informs counsel for husband of these matters and that he does not represent the wife. Attorney Whitaker for the husband mails copies of the motion and notice to wife at the Kearney Street, Springfield, address and to the Oklahoma City address. Both were returned. The first, because the addressee moved leaving no address, and the second, because the address was unknown.
April 25, 1975:
The order of publication is issued.
June 21, 1975:
The wife remarries.
June 25, 1975:
The motion to modify custody to the husband was heard and granted by default. Attorney Hammett appears personally to observe, not as counsel for the wife. June 27, 1975:
A copy of the order of modification of custody is mailed to the wife at the Kear-ney Street, Springfield, address and to the parents of the wife at Trenton, Missouri, but without street and number designations. The first is returned to the sender because the addressee left no forwarding order and the second, because the address was incomplete.
September 9, 1976:
The wife brings the action to set aside the default judgment of modification of custody.

These events are without essential dispute. How they bear on the knowledge of the husband as to the presence of the wife at any given time between commencement of the action to modify custody and the entry of default judgment, however, is a matter of disagreement and confusion. The evidence of the wife suggests that the lack of diligence of the husband is shown by three circumstances: First, that despite knowledge that the wife continued to be employed at the Johnson Economy Inn in Springfield, he attempted no personal service there nor inquiry of her true address. Second, that her telephone was listed for the Kearney Street address in Springfield and then at Franklin Street so that, presumably, her successive listing would have been disclosed by a call to the Kearney Street number. Third, that the wife had given a St. Louis Street address in Springfield to the children while in Kansas City [only two days before the custody action was brought] which was transmitted to the father by the son, but to which he gave no heed. The wife contends that an honest effort by the husband to act on any of this information would have disclosed her presence for personal service and notice of the motion.

The evidence of the wife self-contradicts each of these contentions. The first of them, that a proper diligence required the husband to attempt service upon her at the Johnson Economy Inn, or at least attempt to learn her residence from that source, rests on the telephone conversation on Tuesday, March 11th, between the wife in Oklahoma City and the husband at the Kearney Street trailer court residence the wife most recently maintained. He was there to retrieve the children. There is no doubt the husband knew that while last in Springfield the wife was employed at the Inn. The wife contends, however, that during that telephone conversation from Oklahoma City she informed the husband that she continued to be employed at the Inn and therefore his failure to make inquiry there failed his duty of diligence. The testimony of the wife herself belies this contention. The wife had gone to Oklahoma City to marry and to live. Her fiance was transferred there to a new employment and they were to establish residence there. That is what she had the children understand, as well as babysitter Mary Maddox, and that is what the husband learned. At the very time of her conversation with the husband [wherein she contends she continued employment at the Inn in Springfield] she had found new employment in Oklahoma City, and the very day after, she engaged a new residence. Thus, by her own admissions and conduct the wife meant Oklahoma City as a permanent change of locus to which she intended to call her children that Friday. Her testimony that she informed the husband by telephone that she continued employment at the Inn in Springfield is contradicted by her clear evidence that she was — for all she then knew — permanently employed in Oklahoma City. These disparate versions by the wife on the issue defeat each other and allow no inference that information of current employment was imparted to the husband by that means. Adelsberger v. Sheehy, 322 Mo. 954, 59 S.W.2d 644, 647[6, 7] (1933).

The second contention, that an inquiry at the telephone listed for the wife at the Kearney Street address which she occupied before the sortie to Oklahoma City would have disclosed her then location is only fictive. The evidence on that circumstance was ambiguous. There is no clear account as to the succession of residence the wife adopted after the return from Oklahoma City. One circumstance, however, shows plainly: the wife occupied at least three different addresses between Kearney Street where her first telephone was installed and South Franklin Street which she later occupied with husband Huisenga: Oklahoma City intervened, as did the parental residence in Trenton, Missouri, Rita Strops on Missouri Street in Springfield and, by one account, also a St. Louis Street address in Springfield. When she left Kearney Street for Oklahoma City, the move was permanent by her own account, and nothing suggests that the South Franklin telephone installation was a continuation of the earlier service or listing. The contention that simple inquiry at the earlier listing would have located the wife yields only speculation from the evidence. Nor was there indication the husband had any source for the knowledge that the wife resided at South Franklin by whatever name. If we must assume the improbable, however, that — as the wife testified — at the end of April the South Franklin Street telephone had been both installed and the number simultaneously printed in the Springfield directory in her then name of Burchett [this, despite the premises were the marital domicile with husband-to-be Huisenga], nevertheless, by then the modification action had commenced, personal service upon the wife attempted and failed at the Oklahoma City and Kearney Street addresses and upon attorney Hammett and service by publication perfected. The husband had by then acquitted his duty of diligence. The position of the wife that such an effort would have located her for personal service does not appear with sufficient substantive effect to have bound the husband, in the exercise of a prudent diligence, to the inquiry the wife contends for. Williams v. Cavender, 378 S.W.2d 537, 541[2, 4] (Mo.1964).

The wife makes a third contention. There was testimony by the son [called as her witness] that on her visit to Kansas City two days before the action to modify custody was commenced the mother then told him she was temporarily at a motel on St. Louis Street in Springfield, and that the son transmitted this information to the father. This evidence suggests that at the time when the custody action impended there was available to the father a certain location for personal service upon the wife which he nevertheless disregarded. This evidence, however, finds only contradiction in the testimony of the wife, herself. According to her testimony, she gave the children the Missouri Avenue address of Rita Strops as her temporary residence. [The street number was never in evidence and, presumably, was not known by the children.] Thus, had the husband acted on the St. Louis Street address, by the testimony of the wife, she was not there to be found.

The case of the wife as proponent of the proceeding to vacate the default judgment founders in uncertainty simply because the wife failed to define her movements from the commencement of the motion to modify to the entry of judgment. There is no frame of reference from which an inference may be drawn with confidence that the wife was at a given place at a given time actually known to the husband or, the circumstances considered, which a reasonable diligence would have required him to discover. The account as to the succession of her residences during this critical time was garbled, elusive and uncertain. The wife recounted that sequence three times, separately, in response to inquiry from her counsel, opposition counsel and the court. There is no mention of the St. Louis Street address nor, for that matter, of the Trenton address of her parents where she remained at least for a time. There was evidence by the children, however, that they wrote to the mother at the St. Louis Street address but that the last communication was returned addressee unknown. These events are unrelated to date and, even if otherwise probative, bear uncertainly on the knowledge of the husband and his duty of diligence.

The grant of coram nobis to set aside the judgment by default rests on the determination that the husband made no diligent effort to find the wife for personal service on the motion to change custody of the children. The trial court expressly ruled that at the time the husband confronted the wife in Kansas City, two days before the commencement of the action, diligence prompted that he inquire of her as to her address and, when he failed in that, he thereafter inquire at her residence or employment in Springfield, or of the children. The determination that the husband lacked diligence, a mixed question of fact and law, was without substantial basis in the evidence and requires that the coram nobis relief granted the wife be set aside. Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976).

It is the requirement of due process that a valid judgment quasi in rem be preceded by notice to the absent defendant and an opportunity to be heard. In re Marriage of Breen, 560 S.W.2d 358, 364[17] (Mo.App.1977). Rule 54.17 sanctions notice by publication upon an affidavit that service upon the person or by mail cannot be obtained and that the address of the person to be served is unknown. The rule does not, in terms, describe the diligence expected before service by publication may validly issue, but due process requires an honest and reasonable effort to find the adversary for personal service before the less adequate warning by publication may be sanctioned. Leichty v. Kansas City Bridge Company, 354 Mo. 629, 190 S.W.2d 201, 203[4, 5] (Banc 1945). The diligence which must precede publication does not mean an unremitting activity to locate the adversary but an honest and reasonable effort appropriate to the circumstances to enable personal service upon her. 62 Am.Jur.2d, Process, § 117.

The conclusion of the trial court that the husband lacked diligence when, among other lapses, he neglected to ask the wife her address during his conversation with her only two days before the commencement of the custody action, may not be sustained because a prudent person would not have made such an inquiry in the circumstances. The event which the trial court describes was the confrontation between the husband and wife in Kansas City where he had returned the children. The husband had only two weeks earlier been in Springfield to retrieve the children from the juvenile officer involvement and spoken to the wife in Oklahoma City by telephone. She then told him she had gone to that city to marry and gave him her Oklahoma City address. There was clear inference that from the children and from babysitter Mary Maddox he learned-that the children were to follow her there within the week for permanent residence. There was no reason to doubt, when he spoke to the wife again in Kansas City only two weeks later, that her residence address had changed. He told her then forthrightly that he was about to bring proceedings to change the custody of the children to him. She did not respond to that announcement nor offer her current address — presumably at Rita Strops or St. Louis Street, or wherever the evidence may be understood to place it — to protect so important an interest.

The further facts found by the trial court to support the judgment: that the husband made no inquiry at the Springfield work or residence places of the wife — we conclude as a matter of law, did not constitute lack of diligence. As we have noted, the husband, as any reasonable person in the circumstances, could only assume that the remarriage of the wife in Oklahoma City, the intended removal of the children there, her employment and new residence there all demonstrated a severance of the former Springfield employment and intention to return. As to the Springfield residences, the husband in fact attempted service by registered mail upon the wife at the Kear-ney Street address but the letter was returned: “moved left no address.” As we have noted, also, the actual locus of the wife at any given time throughout the progression of the litigation is speculative. At the commencement of the custody action the husband had no personal knowledge of the presence of the wife. It could have come to him only by inquiry or disclosure. For the reasons we have given, his actual knowledge would not have prompted a prudent and reasonable person to the inquiry the trial court required. The only other source of information was the children who had also spoken with the mother in Kansas City and who had attempted to speak with her by telephone and by letter in the interim before judgment. The testimony by the wife that she informed the children she was temporarily with Rita Strops on Missouri Street [presumably about the time the action was commenced], but without specific address number, was contradicted by the testimony of her son that she had given him the St. Louis Street address. It is not clear whether that location was merely a convenient means for the wife to receive her mail or whether she ever occupied a room at the motel, but even from the testimony of the children it is clear that not all mail directed there reached the wife, because the last communication from the children was returned: “addressee unknown.” Again, the evidence lacks reference to a definite chronology.

The evidence suggests one other possible source of knowledge, or at least occasion for inquiry, by the husband. The wife testified that between March and June of 1975 [the approximate commencement of the action to the entry of default judgment], she was in intermittent telephonic communication with the children in Kansas City and told them where she resided and that she had returned to her old employment [at the Inn]. The mother testified also that the children, in turn, telephoned her at the South Franklin Street [Huisenga] address and at her employment. This entire evidence was contradicted by her son, however, that the children ever called the mother and that his [their] first telephonic conversation with her was after her marriage to Huisenga and, we safely assume, after the judgment for modification had been rendered. The children had attempted, however, to reach the mother by telephone at the Trenton residence of her parents, but without success. These versions so self-contradict the other as to fail any inference or proof that inquiry of the children would have disclosed to the husband a location for personal service upon the wife. Pashea v. Terminal R. Ass’n of St. Louis, 350 Mo. 132, 165 S.W.2d 691, 695[6] (1942).

The wife urges that deposition testimony of the husband be given the effect that he was indifferent to where she could be found for personal service and therefore proof of lack of diligence. The colloquy, once again, was from the Kansas City encounter:

Q. Did she tell you where she was that following Tuesday [in Kansas City]?
A. No.
Q. Did you ask?
A. No.
Q. You really didn’t care; did you?
A. No.

The wife translates the response to the leading question: “You really didn’t care; did you?” to admit his unconcern for his duty to attempt to locate her for personal service. That answer is more readily understood, in the circumstances, as an exasperation with a mother who moves children without apparent concern from place to place, who cohabits promiscuously with men in the company of the children, and who, since, bore a child out of wedlock.

The procedures employed by the husband — attempted service by registered mail upon the wife at the only two residence addresses known to him, Kearney Street where he retrieved the children in Springfield and the Oklahoma City location given him by the wife only two weeks earlier, and the formal notice to attorney Hammett who had represented the wife in the original proceedings, were sufficient ground for a reasonable and prudent person to believe that the adversary could not be served and so authorized the service by publication that issued. The conduct of the husband to locate the wife was diligent and the service of process upon her by publication was in good faith. Martin v. McCabe, 358 Mo. 118, 213 S.W.2d 497, 502[5] (1948).

We reverse the coram nobis decree of the trial court and reinstate to full effect the judgment by default entered on June 25, 1975, which modifies the divorce decree of March 20, 1973, and awards custody of the minor son and daughter to the husband. Our judgment restores.the father to permanent custody of the children and, therefore, the temporary custody awarded to the father by the trial court as an incident of coram nobis is superseded. We note nevertheless that the trial court was without power to adjudicate the issue of temporary custody on coram nobis without a separate pleading. The issue' of temporary custody does not inhere in coram nobis, which goes only to the validity of the prior adjudication, but must be presented on contentions by a pleading for that purpose. The present Dissolution of Marriage Act requires, in any event, that a request for temporary custody be by motion which “must be supported by an affidavit.” § 452.380. These prerequisites were not met; therefore, the separate judgment of temporary custody award was coram non judice.

The question remains whether the award to the wife of an attorney fee was proper in a proceeding to set aside a judgment to modify an award of custody. Our law allows recovery of such a fee by authority of statute or contract, or on occasion when employed by a court of equity to balance benefits, or as an element of damage to a wronged party in a collateral proceeding brought to correct a breach of duty by the adversary. Forsythe v. Starnes, 554 S.W.2d 100, 111[21, 22] (Mo.App.1977). The grant of attorney fee was a regular incident of judgment under the earlier divorce practice, even in the absence of statute, as an exercise of the inherent power of a common law court, and the present Dissolution of Marriage Act [§§ 452.300 to 452.415] codifies the common law practice. In neither, the procedure judicially defined nor that of present statute, however, is there recovery for attorney fee incident to a coram nobis to set aside a default domestic relations judgment. Fox v. Fox, 312 S.W.2d 362, 363[3] (1958). Nor could the fee allowance issue as an exercise of equity jurisdiction, since the motion employed by the wife was a common law remedy. We should not be unwilling, however, had the wife prevailed on the collateral attack on the default judgment by writ of coram nobis to sustain the grant of attorney fee. The rule in Forsythe v. Starnes, supra, and kindred cases, allows such a recovery in a collateral litigation [such as coram nobis] where the contender shows [l.c. 111]: that the collateral litigation is the natural and proximate result of a wrong or breach of duty by the adversary; that the counsel fee was incurred in good faith and necessity to protect the wronged party from injury; and that the counsel fee is reasonable. We have determined the wife had judgment taken against her in a manner compatible with due process of law, and therefore was not wronged, and so has no access to that remedy for allowance of attorney fee.

The judgment in appeal No. KCD 29,509 is reversed and the award of permanent custody of the two minor children to the father is reinstated and the allowance of attorney fee and suit money to the wife is set aside. The judgment in appeal No. KCD 29,526 is reversed and the grant of temporary custody of the children to the father is set aside and superseded by the reinstated award to him of their permanent custody. The order of the trial court that the obligation of the father for child support from March 10, 1975, to January 28, 1977, under the terms of the prior award be deemed satisfied is affirmed. It is further ordered that each party bear equally the costs of the action.

All concur.

      . This rule, as we have noted, rests on the ostensible rationale that a motion to modify a custody award is not an original action, but merely continues the initial proceeding. Hayes v. Hayes, supra, 252 S.W.2d, l.c. 327[4—7]; North v. North, supra, 100 S.W.2d, l.c. 587[13-15]; Burgess v. Burgess, supra, 190 S.W.2d, l.c. 284; In re Lipschitz, supra, l.c. 185. This rule, however, neglects the other postulate of these cases that the distinctive motion to modify is also an independent proceeding in which new rights based on new evidence are adjudicated. In short, these authorities fail to confront the express requirement of Rule 43.01(a) and predecessor § 506.100 that no service of a pleading subsequent to the original petition need be made on a party in default “except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service [of] summons.”


author: PER CURIAM:

text:
    Thelma L. POMEROY et al., Plaintiffs-Respondents, v. Ella KYMPTON et al., Defendants-Appellants.
    No. 10988.
    Missouri Court of Appeals, Springfield District, En Banc.
    Oct. 3, 1978.
    Kenneth W. Shrum, Marble Hill, for plaintiffs-respondents.
    John Z. Williams, Rolla, for defendants-appellants.
   PER CURIAM:

Appeal from a suit to quiet title to realty situate in Phelps County, Missouri. The case was tried to the court and on February 24, 1978, the court wrote in its docket book what was labeled a “Docket Entry of Judgment”, but, in fact, no judgment was then entered. Thereafter, on March 1, 1978, plaintiffs filed a “Motion to Correct Findings of Fact, Conclusions of Law and Docket Entry Judgment.” On March 27, 1978, defendants filed a notice of appeal wherein they recited that they were appealing “. . . from the judgment entered in this action on the 24th day of February, 1978.” On August 2, 1978, the circuit court entered final judgment in the cause.

In Missouri, the right to appeal is created by statute, V.A.M.S. § 512.020, and governed by rules of civil procedure. V.A. M.R. 81.04 requires that the notice of appeal be filed after the judgment or order appealed from becomes final. The instant case presents the situation wherein an appeal was initiated prior to entry of a final, appealable judgment and, therefore, prior to the time when such a judgment would be deemed to be final for purposes of appeal. No notice of appeal has been filed from the August 2, 1978, judgment.

One might argue that the provisions of V.A.M.R. 81.05(b) would allow this court to consider the instant notice as a premature notice of appeal which would survive until the judgment became final for purposes of appeal. However, the applicability of V.A.M.R. 81.05 is limited to that period of time between entry of judgment and the point where the judgment becomes temporally final for purposes of appeal. V.A. M.R. 81.05 offers no salvation for those notices of appeal which are filed prior to rendition and entry of judgment.

This court must inquire into the timeliness of the notice of appeal in every case because absence of timely notice deprives this court of appellate jurisdiction. Budget-Easy, Inc. v. Burd, 539 S.W.2d 740, 741[2] (Mo.App.1976). The appeal must be, and hereby is, dismissed without prejudice to apply for leave to file a notice of appeal out of time. V.A.M.R. 81.07(a).

All concur.