author: STONE, Judge.

text:
    MIDWEST LUMBER CO., INC., Plaintiff-Respondent, v. Eugene SELLERS, Defendant-Appellant.
    No. 10371.
    Missouri Court of Appeals, Springfield District.
    Sept. 22, 1977.

      John E. Curran, Lake Ozark, for plaintiff-respondent.
    Carl F. Sapp, Columbia, for defendant-appellant.
   STONE, Judge.

In this suit on an open running account Midwest Lumber Company, Inc. (Midwest), plaintiff in the trial court and respondent here, sought to recover from defendant-appellant Eugene Sellers for building materials furnished to him. Upon trial by the court, judgment was entered for plaintiff in the sum of $4,752.40, which included $3,437.59 principal and $1,314.81 interest. Defendant Sellers appeals.

Rule 84.04 V.A.M.R. treats of the contents and requisites of appellate briefs. Paragraph (a) of that rule specifies “[a] statement of the facts” as one of the essentials in “[t]he brief for appellant”; and paragraph (c) of the same rule requires that “[t]he statement of facts shall be a fair and concise statement of the facts relevant to the questions presented for determination without argument.” (Emphasis ours) The “Statement of Facts” in the brief of instant defendant-appellant Sellers consists of the following four sentences:

“STATEMENT OF FACTS”
“The Respondent in this case filed suit against the Appellant in the Circuit Court of Camden County on an open running account (TR 2) for building materials and supplies allegedly furnished to the Defendant and seeking a judgment for $3,447.54 (TR 3). Defendant by its answer generally denied all averments of Plaintiff’s Petition and specifically denied the Corporate Existence of the Plaintiff (TR 9) and alleged as a separate affirmative defense that the material, if any, was delivered and sold to ‘Mistwood, Inc.,’ a Missouri corporation (TR 9). The case proceeded to trial March 3, 1976, to the Court without a jury and after hearing the evidence on the issues the cause was taken under advisement March 3, 1976 (TR 7). Judgment was entered two months later on the 5th day of May, 1976, for the Plaintiff and against the Defendant for $3,437.59 principal and for interest in the sum of $1,314.81 (TR 127-A).”

It is immediately apparent and patently plain that defendant-appellant’s above-quoted four-sentence “Statement of Facts” is nothing more than a thumbnail sketch of the pleadings and judgment that does not purport to state, summarize or even allude to any of the testimony or evidence supporting or bearing upon either (a) plaintiff-respondent’s position and the trial court’s judgment for plaintiff or (b) any of defendant-appellant’s “Points Relied On.” In situations of the foregoing character, the wages of dereliction in failing to heed the applicable rule requirement frequently has been dismissal of the appeal.

Almost seven decades ago, our Supreme Court per Judge Henry Lamm, an eminent and renowned master of both the law and the English language, sagely declared in Sullivan v. Holbrook, 211 Mo. 99, 109 S.W. 668, 670 (1908), that:

“The rules of appellate practice in hand are simple and plain. They fill no office of mere red tape, or as a show of surface routine. To the contrary, they have substance, and carry on their face the obvious purpose to aid appellate courts in getting at the right of a cause. Hence, apparently, they bespeak the dignity arising from obedience. If they are not to be obeyed, they should be done away with once for all. A just rule, fairly interpreted and enforced, wrongs no man. Ostensibly enforced, but not, it necessarily wrongs some men, viz., those who labor to obey it — the very ones it should not injure.”

To denominate the segment of instant defendant-appellant’s brief under consideration as a “Statement of Facts” within the contemplation and meaning of Rule 84.04(c) would be farcical. The veritable deluge of cases at this appellate level no longer admits of our ignoring or winking at such blatant and flagrant disregard of plain requirements. Satisfied, as we are after scanning ex gratia other segments of defendant-appellant’s brief and the transcript, that our summary disposition of this appeal will work no substantive injustice, we con-elude without doubt or hesitancy that defendant’s appeal should be dismissed.

It is so ordered.

BILLINGS, C. J., concurs.

HOGAN, TITUS and FLANIGAN, JJ., concur.

      . Sellers’ brief incorrectly identifies him as plaintiff-appellant and Midwest as defendant-respondent, while Midwest’s brief inaccurately identifies Sellers as plaintiff-respondent and Midwest as defendant-appellant.

      . Walker v. Allebach, 354 Mo. 298, 300, 189 S.W.2d 282, 283(3) (1945); Cady v. Kansas City Southern R. Co., 512 S.W.2d 882, 885(6) (Mo.App.1974); Geiler v. Boyer, 483 S.W.2d 773, 774(2) (Mo.App.1972); Glick v. Glick, 360 S.W.2d 333, 335(1) (Mo.App.1962); In re Adoption of P.J.K., 359 S.W.2d 360, 363(3) (Mo.App.1962).

        . Walker v. Thompson, 338 S.W.2d 114, 117(8) (Mo.1960); Jacobs v. Stone, 299 S.W.2d 438, 440(1) (Mo.1957); Overall v. State, 540 S.W.2d 637, 638(2) (Mo.App.1976); Hughes v. Wilson, 485 S.W.2d 620, 621(1) (Mo.App.1972); DeCharia v. Fuhrmeister, 440 S.W.2d 182, 183(1) (Mo.App.1969).

      . Page v. Laclede Gas Light Co., 245 S.W.2d 23 (Mo.1952); Graff v. Montileone, 523 S.W.2d 131 (Mo.App.1975); Glick v. Harris, 518 S.W.2d 227 (Mo.App.1974); Power v. Automobile Club Inter-Insurance Exchange, 516 S.W.2d 541 (Mo.App.1974); Pioneer Finance Co. v. Washington, 419 S.W.2d 466 (Mo.App.1967); Gorman v. Kauffman, 188 S.W.2d 70, 71(1, 2) (Mo.App.1945); Beck v. Security Ben. Ass’n., 129 S.W.2d 1073, 1074(1) (Mo.App.1939); Le Clair v. Le Clair, 77 S.W.2d 862, 863-64(1, 2) (Mo.App.1934).

      . Missouri courts have approved Judge Lamm’s statement, in many instances quoting it in full [Ambrose v. M.F.A. Cooperative Ass’n., 266 S.W.2d 647, 648 (Mo.banc 1954); Walker v. Thompson, 338 S.W.2d 114, 118 (Mo. 1960); State v. White, 529 S.W.2d 22, 25 (Mo.App.1975); Cope v. McClain, 529 S.W.2d 6, 7 (Mo.App.1975); Starman v. John Wolfe, Inc., 490 S.W.2d 377, 381 (Mo.App.1973); Glick v. Glick, 360 S.W.2d 333, 335 (Mo.App.1962); Lane v. Nixon, 326 S.W.2d 418, 420 (Mo.App.1959); Stanton v. Phillips, 318 S.W.2d 516, 518 (Mo.App.1958); Lewis v. Watkins, 297 S.W.2d 595, 598 (Mo.App.1957)] and in other instances quoting substantial portions thereof. Patterson v. Wilmont, 245 S.W.2d 116, 119 (Mo.1952); Doehler v. Village of Cool Valley, 498 S.W.2d 621, 622 (Mo.App.1973); Kansas City v. Howe, 416 S.W.2d 683, 690-91 (Mo.App.1967); Kersting v. City of Ferguson, 408 S.W.2d 165, 166 (Mo.App.1966).


source: Caselaw Access Project

author: BILLINGS, Chief Judge.

license: Public Domain

text:
    Ralph Raymond CARR, Jr., Plaintiff-Appellant, v. Rosalie CARR, Defendant-Respondent.
    No. 10127.
    Missouri Court of Appeals, Springfield District.
    Sept. 23, 1977.

      John B. Newberry, Springfield, for plaintiff-appellant.
    John S. Pratt, Springfield, for defendant-respondent.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   BILLINGS, Chief Judge.

Dissolution proceeding. Husband has appealed from the decree of dissolution of marriage entered in the Circuit Court of Greene County awarding wife gross maintenance of $2,500 and monthly maintenance of $100. He contends gross maintenance is not allowable under present Missouri law and there was no substantial evidence to support the monthly award. We affirm.

Husband avers that with the enactment of the new Dissolution of Marriage statutes [§§ 452.300-452.415, RSMo 1973 Supp.] the trial courts of this state have no jurisdiction to make an award of gross maintenance and are limited to awarding periodic maintenance.

Husband’s contention overlooks the fact that § 452.080, RSMo 1969, was not repealed by the legislature and this statute authorizes awards of alimony in gross, from year to year, or both. Furthermore, we decline to accept the narrow and limited construction of § 452.335, RSMo 1973 Supp., advanced by husband. To do so would “ . . . ‘tie the hands’ of courts in cases in which both types . . . might be deemed appropriate or necessary in order to mete out justice to both parties.” Hawkins v. Hawkins, 511 S.W.2d 811, 813 (Mo.1974).

The award of gross maintenance in a dissolution proceeding was directly raised and ruled adversely to husband’s contention in the recent St. Louis District case of D_ E_ W_ v. M_ W_, 552 S.W.2d 280 (Mo.App.1977). There the court said at 282:

“Section 452.080, RSMo 1969, of the previous divorce act, which specifically authorized alimony in gross was not repealed by the Missouri legislature when the dissolution statute was passed. In addition, the words of § 452.335, RSMo 1973 Supp., the maintenance provision, do not preclude an interpretation authorizing a gross award. The statute specifies, ‘The maintenance order shall be . for such periods of time as the court deems just. . . . ’ (Emphasis added.) By such language the statute allows, but does not require, that awards be extended over several periods of time. Section 308 of the Uniform Marriage and Divorce Act, §§ 101-506 (1970), which is identical to § 452.335, RSMo 1973 Supp., of the Missouri statute, has been interpreted as allowing gross awards. In re Marriage of Icke & Icke, 35 Colo.App. 60, 530 P.2d 1001 (1974) and Moss v. Moss, 35 Colo.App. 53, 531 P.2d 635 (1974).”

We agree with the reasoning of the court in D_ E_ W_ v. M_ W_, supra, and hold the trial court was authorized under Missouri statutes to award the wife gross maintenance.

We have read the transcript and contrary to husband’s contention, conclude the award of monthly maintenance to the wife is supported by substantial evidence. And, we are admonished by Murphy v. Car ron, 536 S.W.2d 30, 32 (Mo. banc 1976), the judgment of the trial court is to be sustained by this court “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. . . . ”

The judgment is affirmed.

All concur.

      . Hawkins v. Hawkins, 511 S.W.2d 811 (Mo.1974); Grotjan v. Grotjan, 519 S.W.2d 350 (Mo. App.1975); Staab v. Staab, 515 S.W.2d 787 (Mo.App.1974).


text:
    STATE of Missouri, Plaintiff-Respondent, v. Gary Tyd PALMER, Defendant-Appellant.
    No. 10230.
    Missouri Court of Appeals, Springfield District.
    Sept. 26, 1977.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Wayne C. Smith, Jr., Springfield, for defendant-appellant.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   STONE, Judge.

Defendant Gary Tyd Palmer was charged in three separate informations with first-degree burglary of a dwelling house and felonious assault upon each of the two adult owners-oecupants thereof. By agreement, the three cases were consolidated for trial and, upon defendant’s written waiver of trial by jury, were tried to the court. Upon conclusion of the evidence and “arguments” of counsel, the court found defendant guilty as charged in each of the three cases and immediately proceeded to grant allocution, to sentence defendant in each case to “10 years in custody of the Department of Corrections” with the sentences to run concurrently, and to pronounce judgment accordingly.

Thus, we are again confronted with a record which requires dismissal of an appeal because no final judgment has been entered. For, it has been held repeatedly that a trial court sitting as a jury and rendering a verdict may not impose sentence and enter judgment until the time [afforded by or pursuant to Rule 27.20(a), V.A.M.R.] for the filing of a motion for new trial has expired. State v. Hopkins, 550 S.W.2d 947 (Mo.App.1977); Kansas City v. Rowell, 548 S.W.2d 236, 237(2) (Mo.App.1977); State v. Spear, 503 S.W.2d 52 (Mo.App.1973). See State v. Grant, 380 S.W.2d 799, 803(4) (Mo.1964); State v. Absher, 439 S.W.2d 11 (Mo.App.1969).

Accordingly, we set aside the submission, dismiss the appeal, and remand the cause to the trial court with directions to enter a verdict, receive and rule a motion for new trial, if any be filed, and enter final judgment in accordance with Rule 27.20.

BILLINGS, C. J., and TITUS, J., concur.


author: PER CURIAM:

text:
    Robert Gene KEENEY, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 10796.
    Missouri Court of Appeals, Springfield District.
    Oct. 3, 1977.
    Nicholas R. Fiorella, Springfield, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   PER CURIAM:

Movant’s petition for writ of error coram nobis was denied after an evidentiary hearing. No motion for a new trial was filed. Acting pro se, movant prepared and sent to the circuit clerk a notice of appeal “from the judgment . . entered herein on July 14, 1977.” Contrary to Rule 81.04, Y.A.M.R., in that it was not accompanied by the requisite $20.00 docket fee and there was then no court order waiving same, appellant’s notice of appeal was improvidently accepted and filed by the circuit clerk on July 20, 1977. Sixty-one days after the judgment of July 14,1977, or on September 13, 1977, the circuit court entered an order permitting movant to appeal in forma pau-peris and appointed an attorney to represent him. Sixty-four days after the judgment of July 14, 1977, or on September 16, 1977, another notice of appeal (on a printed form entirely completed by typewriter except for the deputy clerk’s signature) was filed. This purports to be an appeal “from the judgment of conviction entered . . on the 14th day of July, 1977.” The two notices of appeal were not received by the clerk of this court until September 20,1977.

Rule 81.04, V.A.M.R., provides: “. No such appeal shall be effective unless the notice of appeal shall be filed not later than ten days after the judgment or order appealed from becomes final. . . . The docket fee of $20.00 in the appellate court shall be deposited with the clerk of the trial court at the time of filing the notice of appeal. No notice of appeal shall be accepted and filed by the clerk of any trial court unless said docket fee is deposited therewith.”

The notice of appeal prepared pro se was timely sent to the circuit clerk. However, the notice was not accompanied with the $20.00 docket fee and at the time it was filed the court had not entered an order waiving payment of same. The filing of the notice of appeal by the circuit clerk was invalid and ineffective. State v. Keeney, 536 S.W.2d 518 (Mo.App.1976); State v. Peck, 536 S.W.2d 511 (Mo.App.1976); State v. Worl, 531 S.W.2d 294 (Mo.App.1975); Application of Holt, 518 S.W.2d 451 (Mo.App.1975). Because the filing of the first notice of appeal was invalid and the second notice of appeal was untimely, we have no jurisdiction. State v. Brookshire, 400 S.W.2d 61 (Mo.1966).

Appeal dismissed.

All concur.