text:
    STATE of Missouri, Plaintiff-Respondent, v. Algernon McALLISTER, Defendant-Appellant.
    No. KCD 27889.
    Missouri Court of Appeals, Kansas City District.
    March 1, 1976.
    Jeffery L. Alena, Kansas City, for defendant-appellant.
    John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   DIXON, Presiding Judge.

Defendant appeals a conviction of robbery in the first degree by means of a dangerous and deadly weapon. The jury sentenced the defendant to a term of seven years.

Defendant raises two issues on this appeal. First, a claim of error in admitting in evidence a blackjack taken from an accomplice upon the arrest of defendant and the accomplice; and, second, error in the cross examination of the defendant by the prosecutor with respect to his possession of a bus ticket. The facts may be stated in summary fashion since no claim is made that the evidence is insufficient. One Haller was accosted by two men in downtown Kansas City at about 4:15 a. m. Haller identified the men as defendant and one Parker. Parker asked Haller for money; and when it was not forthcoming, Haller was struck with a blackjack and threatened with further violence by the use of the blackjack. Haller testified that the blackjack offered in evidence could have been the blackjack used in the robbery of him. Haller surrendered his billfold and a pocket calculator which was readily identifiable because of a malfunctioning first digit. The police were immediately summoned. Haller was driven around the area, and the victim identified the two men at a location close to the robbery scene. Upon searching the men at the time of the arrest, the blackjack, Hal-ler’s pocket calculator and an amount of currency consistent with the amount taken from Haller’s billfold were seized. Parker, the other man apprehended, had pled guilty and testified for the defendant. His testimony is inconclusive and vague with respect to the identity of the other person who was with him in the robbery. Parker claimed that he was under the influence of amphetamines at the time of the offense.

The first issue raised by the defendant, the claimed error with respect to the blackjack, was predicated upon defendant’s claim that the State failed to properly identify the exhibit prior to its exhibition to the jury. The entire premise of defendant’s argument on this point is that the identification of the blackjack was so tenuous as to render it inadmissible. The identification of an exhibit need not be wholly unqualified in order to make it admissible. Weapons or objects are properly admitted in a criminal trial upon a showing of identity in connection with the crime charged. The officer testified positively and unequivocally that the blackjack was taken from the possession of Parker. Haller, when the exhibit was shown to him, stated that the exhibit could have been the blackjack wielded by Parker. The inference seems inescapable in view of the shortness of time and the apprehension of Parker with the weapon described by the victim when he reported to the police that the weapon was used in the perpetration of the crime. The fact that the defendant himself did not wield or possess the weapon is immaterial. The blackjack was relevant and probative evidence on the issue to be resolved by the jury, that issue being the participation of the defendant jointly with Parker in the commission of the robbery. State v. Richards, 467 S.W.2d 33, 36 (Mo.1971); State v. Greathouse, 519 S.W.2d 299, 302 (Mo.App. 1975); State v. Kitchen, 499 S.W.2d 572, 573 (Mo.App.1973).

The second issue posed by the defendant arose during the cross examination of the defendant who testified in his own behalf. During his testimony, the defendant said that, on the day of the offense, he had expressed an intention to return to Pittsburgh, Pennsylvania. On cross examination, the following query was made by the prosecutor:

“Q Mr. McAllister, have you ever thought about going back to Pittsburgh before?
A Yes, sir.
Q Didn’t you in fact at one time have in your possession a bus ticket?”

An objection was made to that question on the grounds of relevancy which was overruled. The question was reframed and the defendant answered that he had a bus ticket, but not to Pittsburgh. The prosecutor continued to question him concerning his testimony about returning to Pittsburgh, and as to the time when he decided to return to Pittsburgh, and eventually, the defendant testified that he had formed the intention the day before this incident. The defendant, in the motion for new trial, complained that the question conveyed to the jury the notion that the defendant was under instructions to leave Kansas City. In the brief filed here, defendant claims that this questioning by the prosecutor indicated that the defendant had a prior arrest record. Defendant’s argument on this point is based upon information, extraneous to the record in this case, that the prosecutor in the instant case had been the prosecutor in a charge one month prior to the robbery of stealing a motor vehicle brought against the defendant and subsequently dismissed by the prosecutor when McAllister was intending to leave town. Absent this non-record information, which was certainly not before the jury, the inference which defendant seeks to draw from the line of questioning, that the defendant had an arrest record, simply does not follow.

When the defendant took the stand and testified in his own behalf, he became liable to cross examination as to any matter referred to in his examination in chief. Section 546.260 RSMo 1969. State v. Scown, 312 S.W.2d 782, 787 (Mo. 1958). The defendant’s reference in general terms to his intent to leave Kansas City opened the door for the prosecutor to cross examine him in detail on that subject. State v. Moser, 423 S.W.2d 804, 806 (Mo. 1968). Even if erroneous, cross examination must be upon a material matter in order to be prejudicial. State v. Pierson, 331 Mo. 636, 56 S.W.2d 120 (1932). The defendant injected, by direct testimony, the evidence concerning his intention to leave Kansas City, and he cannot now complain of the prosecutor’s cross examination of that intention. The prosecutor did not pursue the examination to elicit from the defendant the reasons for his prior intention to leave Kansas City which might have produced the inference which the defendant now seeks to draw.

Judgment affirmed.

All concur.


source: Caselaw Access Project

author: ANDREW JACKSON HIGGINS, Special Judge.

license: Public Domain

text:
    Richard H. LASWELL, Appellant, v. The INDUSTRIAL COMMISSION OF MISSOURI, DIVISION OF EMPLOYMENT SECURITY, and R. H. Macy & Company [Co.], Inc., Respondents.
    No. KCD 27959.
    Missouri Court of Appeals, Kansas City District.
    March 1, 1976.

      Richard P. Halliburton, The Legal Aid and Defender Society of Greater Kansas City, Kansas City, for appellant.
    Terry C. Allen, Dan J. Chatfield, Jefferson City, for respondent Div. of Emp. Security.
    Charles B. Fain, Jefferson City, for Industrial Commission of Missouri.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from judgment affirming decision of The Industrial Commission disqualifying Richard H. Laswell from waiting week credit or benefits for violation of the dress policy of his employer. R. H. Macy & Co., Inc. The dispositive question is whether the employee’s violation of the employer’s hair code, in the circumstances, amounted to “misconduct connected with his work” to warrant disqualification, for unemployment compensation benefits. Reversed and remanded.

R. H. Macy & Co., Inc., owns a department store in Kansas City, Missouri. Richard H. Laswell worked as a photography darkroom operator for the advertising department at the store from December 2, 1970, until May 12,1972. The employer had a “dress policy” which forbade men to wear beards. Although aware of the policy at the commencement of his employment, Mr. Laswell quit shaving in January, 1971, and grew a full beard, believing he would be permitted to do so because his work did not involve contact with customers. He discussed his wish with his immediate supervisor prior to permitting his beard to grow and “she said that the regulations against beards * * * were directed for people that contacted the public and that [in] my position in the darkroom I would not be identified as an employee and therefore she saw no reason for me not to grow a beard.”

In June 1971, Mr. Laswell was given a performance review. Nothing was said about his beard, his work was acceptable, and he received a raise in wages. He continued to wear his beard without question or comment until a review April 18, 1972, when he was told by his employer’s personnel manager that his beard was in violation of the employer’s rule. Mr. Laswell explained that his desire to wear and to refrain from cutting his beard stemmed from his belief as a naturalist. His work performance had continued to be satisfactory. The personnel manager agreed to review the matter with the executive committee which refused to make an exception to the employer’s policy. An ultimatum followed to shave or look elsewhere for a job. Mr. Laswell’s last day at work was May 12, 1972, at which time he had two weeks’ accrued vacation pay amounting to $260, which he ultimately received.

Richard H. Laswell made his claim for unemployment compensation benefits May 15, 1972, stating May 12, 1972, was his last day worked for R. H. Macy & Co., Inc., and that “discharge” was the reason for separation. On June 5, 1972, a deputy in the Division of Employment Security determined that the claimant was discharged “because he refused to shave his beard,” and that the discharge was “not for misconduct” as to disqualify him for benefits.

The employer appealed the deputy’s decision on the ground “claimant voluntarily quit.” On July 7,1972, the appeals tribunal found that claimant, in refusing to shave his beard, left his work and chose unemployment voluntarily without good cause, reversed the deputy’s decision, and disqualified claimant for waiting week credit or benefits “until he has earned wages after May 12, 1972, equal to ten times his weekly benefit amount” under Section 288.050.1, RSMo 1969, Y.A.M.S.

Mr. Laswell then appealed to The Industrial Commission which, on November 14, 1972, determined that “claimant was discharged for misconduct connected with his work,” and modified the decision of the appeals tribunal to disqualify claimant “for waiting week credit or benefits for two weeks for which he claims benefits and is otherwise eligible. Claimant is ineligible for benefits from May 14, 1972, to May 27, 1972, due to the receipt of vacation pay for this period. Subject to the two weeks disqualification the claimant is eligible for waiting week credit or benefits * * all under Section 288.050.2, RSMo 1969, V.A.M.S.

The circuit court affirmed the decision of The Industrial Commission of Missouri and this appeal followed. Appellant contends, among other things, that the decision of The Industrial Commission is not supported by competent and substantial evidence and is contrary to the overwhelming weight of the evidence because he was not guilty of misconduct within the meaning of Section 288.050.2, supra. He argues that irrespective of how the issue is denominated, e. g., waiver and estoppel, modification of employment contract, or unreasonableness of the rule in relation to his duties, the facts and circumstances preclude a finding of misconduct. Respondents Division of Employment Security and The Industrial Commission of Missouri contend the Commission’s finding of misconduct is proper because the employee deliberately violated the employer’s rule against beards; that the employer did not waive its rule or modify the employment contract and, if it did, such waiver or modification was withdrawn or ratified by subsequent reaffirmation of the rule and grant of time for the employee to comply. Respondent Macy has not briefed the appeal.

Upon this review, the court must determine whether the findings of the Commission are supported by competent and substantial evidence and authorized by law. The court may not substitute its judgment on the evidence for that of the Commission, but it is required to decide whether the Commission could reasonably have made its findings and reached its result upon consideration of all the evidence before it, and the court is authorized to set aside the decision if it is contrary to the overwhelming weight of the evidence. Section 288.210, RSMo 1969, V.A.M.S.; Mid-Continent Aerial Sprayers v. Industrial Com'n., 420 S.W.2d 354, 356[3] (Mo.App.1967).

The Commission’s disqualification of Mr. Laswell was under Section 288.050.2, supra, which provides that a claimant “ * * * shall be disqualified for waiting week credit or benefits for not less than one nor more than eight weeks [in this case two] for which he claims benefits and is otherwise eligible” if it is found that he “has been suspended or discharged for misconduct connected with his work * * * .”

The purpose of the Missouri Unemployment Security Act is to provide benefits to unemployed persons, and its disqualifying provisions must be strictly construed. Citizens Bank of Shelbyville v. Industrial Com’n., 428 S.W.2d 895, 898[6] (Mo. App.1968). In the interpretation of applicable statutes, the court’s duty is to determine legislative intent from the words used by applying their plain natural meaning to promote the object of the Act. Bussman Mfg. Co. v. Industrial Com’n., 335 S.W.2d 456, 459—460[1—3] (Mo.App.1960).

Determination of whether an act constitutes “misconduct connected with his work” has been a troublesome question, and there is more to the question than a simple or deliberate violation of an employer’s rule of conduct. Missouri has accepted the definition found in 76 Am.Jur.2d, Unemployment Compensation § 52, p. 945: “ * * * misconduct within the meaning of an unemployment compensation act excluding from its benefits an employee discharged for misconduct must be an act of wanton or wilful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of standards of behavior which the employer has the right to expect of his employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer.” See Ritch v. Industrial Commission, 271 S.W.2d 791, 793 (Mo.App.1954). This, or similar, definition has been accepted in a number of jurisdictions which have cautioned against a definition of misconduct so limiting as to defeat the purpose of unemployment security laws, e. g.: “ * * * there is imposed by this [misconduct] provision, when it is operative, a forfeiture or penalty on the employee. * * ' * and in view of the ambiguous or doubtful import in its meaning as used in the statute, it is necessary and proper to resort to the rule that statutes providing for forfeitures are to be strictly construed and terms and provisions therein, which are ambiguous or of doubtful meaning, will be given the construction which is least favorable to working a forfeiture, so as to minimize the penal character of the provision by excluding rather than including conduct or cases not clearly intended to be within the provision.” Boynton Cab Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636, 640 (1941). Accord Sewell v. Sharp, 102 So.2d 259, 261-262[6] (La.App. 1958); Spaulding v. Florida Industrial Com’n., 154 So.2d 334, 339[2] (Fla.App.1963).

The foregoing definition and caveat equate with popular definitions of misconduct, e. g., wrongful or improper conduct; bad behavior; unlawful behavior or conduct, Webster’s New International Dictionary, 2d Edition; and with the observation that behavior can be wrongful only in relation to some standard, Kempfer, Disqualification for Voluntary Leaving and Misconduct, 55 Yale L.J. 147, 162.

Appellant does not dispute existence of Macy’s rule against beards; he does not deny agreement to adhere to that rule at the inception of his employment December 2,1970; nor does he claim that Macy had no right to discharge him. His complaint is that The Industrial Commission could not, in the circumstances, find that his discharge was for “misconduct connected with his work.”

There is also no dispute that prior to growing a beard, the employee obtained approval from his immediate supervisor who was of the opinion that the rule against beards did not apply to employees such as Mr. Laswell whose duties were performed in a darkroom and who had no direct contact with the public. On the strength of his supervisor’s permission, in reliance on Macy’s approval of his conduct and work at his June, 1971, performance review, and with Macy’s continued approval, acquiescence, and forbearance with respect to his work, conduct, and beard, Mr. Laswell continued to wear his beard without question of a rule violation until his performance review of April, 1972. Only then was his beard questioned, and only after further consideration and subsequent ultimatum in May, 1972, to shave or quit, was his employment terminated. His work was never questioned, and he received satisfactory ratings and a wage increase. There is no evidence that Richard Laswell ever acted in wanton or willful disregard of his employer’s interest or to show that his violation of Macy’s rule and standard against beards affected his performance, the performance of fellow employees, or Macy’s reputation and customers. Neither was he shown to be negligent in any degree or recurrence as to manifest culpability, wrongful intent, or evil design, or to have an intentional and substantial disregard of his employer’s interest or his duties and obligations to his employer. To the contrary, the evidence shows his work habits and conduct were permitted, accepted, and approved. Such circumstances are different and distinguishing from respondents’ characterization and cases of deliberate violation of a rule, and they preclude a determination of misconduct within the meaning of the statute.

Rules governing employees which operate only as conditions of employment and are unrelated to actual job performance have been characterized as rules of “suitability” or “selection.” Packard, Unemployment Without Fault: Disqualifications for Unemployment Insurance Benefits, 17 Villanova L.Rev. 635, 647, n.63 (1972). Thus, “ * * breach of a duty to the employer does not alone make the act one ‘connected with the work’ in the statutory sense. Certainly it would be inconsistent with the policy of the unemployment compensation laws to permit an employer to connect any behavior with the work simply by obtaining an express promise from the employee not to engage in that type of behavior.” Kempfer, supra, 55 Yale L.J., l.c. 163 (1945).

This is a case of first impression in Missouri, and the cases from other jurisdictions are not uniform; however, there is support for the result indicated and the writers quoted. An employer’s rule requiring discharge of an employee if two garnishments were received on the employee’s wages within a nine-month period “does not govern an employee’s conduct connected with his work, but, rather, sets forth a condition of employment and continuance therein. It covers the selection and retention of employees, not their conduct on the job or connected with their work. Breach thereof may entitle the employer to discharge his employee, but such discharge is not for misconduct connected with his work as contemplated by the statute.” Reed v. Michigan Employment Security Com’n, 364 Mich. 395, 110 N.W.2d 907, 908 (1961). Accord, Robinson v. Brown, 129 So.2d 45, 46 (La.App. 1961), noting the “vast distinction between the violation of a rule of an employer that would justify the discharge of the employee and a violation of such rule that would warrant a determination of misconduct connected with the employee’s employment so as to disqualify him for the statutory unemployment compensation benefits.” Cf. American Sugar Refining Co. v. Taylor, 115 So.2d 898 (La.App.1959), and Chrysler Corp. v. Review Board of Indiana Emp. Sec. Div., 134 Ind.App. 1, 185 N.E.2d 25 (1962), where there were no circumstances of permission, acquiescence, and forbearance, and note dissent, 185 N.E.2d l.c. 29. Note also that absent testimony from private employer why he discharged employee who was told he was discharged unless he shaved his beard, there was a statutory presumption that employee was not discharged for misconduct, for purposes of unemployment compensation.' Thornton v. Dept, of Human Resources Develop., 32 Cal.App.3d 180, 107 Cal.Rptr. 892 (1973). Cf. Southern Pacific Transport Co. v. Doyal, 289 So.2d 882 (La.App.1974), that truck driver discharged for failure to comply with requirement that employees have “conventional haircut” was discharged for misconduct connected with his work, and note that the record was “replete with numerous warnings as to how and why the employee was in violation of the rule,” (l.c. 884), and the lack of any evidence showing permission, forbearance, or acquiescence by the employer in the ever-present failure of the employee to comply.

The concept of misconduct in connection with work is one which can best be delineated by the gradual process of inclusion or exclusion as the cases arise, Kempfer, supra, 55 Yale L.J., l.c. 166. Thus, as indicated, the facts and circumstances of this case do not constitute “misconduct connected with his work” within the meaning of the unemployment compensation act to support the decision of The Industrial Commission

The judgment is reversed and the cause is remanded with directions to further remand the decision to The Industrial Commission with directions to set aside its finding that “claimant was discharged for misconduct connected with his work,” and its disqualification of Richard Laswell on that ground from “waiting week credit or benefits for two weeks for which he claims benefits and is otherwise eligible.”

All concur.


author: WEIER, Presiding Judge.

text:
    ESTATE of Caroline Ada SAMPLE, Deceased, Plaintiff-Respondent, v. The TRAVELERS INDEMNITY COMPANY, Defendant-Appellant.
    No. 36703.
    Missouri Court of Appeals, St. Louis District, Division One.
    March 2, 1976.
    Colson & Wagner, David L. Colson, Farmington, for defendant-appellant.
    Schnapp, Graham & Reid, John Reid, Fredericktown, for plaintiff-respondent.
   WEIER, Presiding Judge.

This is a case with a long judicial history, It was originally filed on July 29,1969 by E.

A. Sample, Administrator of the estate of Ada C. Sample, Deceased, in the probate court of St. Francois County, Missouri. A proceeding under § 473.207, RSMo.1969, it sought to obtain damages on an alleged breach of the bond of the guardian of Caroline Ada Sample against her son, Truman R. Sample, the guardian, and the Travelers Indemnity Company, the surety. Problems involving a void appeal from the probate court to the circuit court were presented to this court in State ex rel. Travelers Indemnity Co. v. Swink, 440 S.W.2d 152 (Mo.App. 1969). Thereafter the case received the attention of the Supreme Court on an appeal from entry of a summary judgment in favor of plaintiff in Estate of Sample v. Travelers Indemnity Company, 492 S.W.2d 829 (Mo.1973). In that case the court determined that there were genuine issues as to material facts which remained to be resolved, and the case was remanded for trial on the factual issues. The case now appears in our court on appeal after a trial to a jury wherein verdict and judgment was in favor of plaintiff and against defendant Travelers Indemnity Company in the sum of $114,547.97.

We will not discuss the facts because the case on appeal immediately presents a question of appellate jurisdiction. After consideration of this problem, we have concluded that we do not have jurisdiction in the case and that the appeal must be dismissed.

This jurisdictional problem occurs because of a disclosure on October 31, 1974, just before trial, that Truman R. Sample, the prior guardian of the Estate of Caroline Ada Sample, and one of the defendants, had died on March 5, 1971. Within a few minutes after the court had convened to try the case, the attorney for Travelers Indemnity Company filed a suggestion of death and a motion to substitute parties. This paper suggested the death of Mr. Sample and requested the court to enter an order requiring substitution of a personal representative. The fact of death was also apparently known to plaintiff since a certificate of death was introduced in plaintiff’s evidence. After a discussion of the problems involved, the attorney for Travelers who filed the motion asked the question: “ * * * Now, do I understand the Court then to be indicating that there is a dismissal as to Truman Sample in this case today?” The court replied: “It’s the Court’s understanding the Suggestion of Death just closes the case as far as Truman Sample is concerned.” Attorney for plaintiff then responded: “Now, if it please the Court, just so there’s no misunderstanding, we do not desire to have any dismissal as to Truman Sample in this case today. We never know what the Appellate Courts might do at a subsequent time.” The court responded: “That’s right.” Again, the attorney for plaintiff: “In changing the law.” The court then stated: “That’s the reason I said that it’s just closed as far as Truman today.” Attorney for plaintiff: “It is not dismissed.” The court: “No, * * *

The first point raised by defendant Travelers on appeal is that the trial court erred in proceeding without appointing a personal representative for the deceased defendant, Truman R. Sample, because Supreme Court Rule 52.12 required substitution upon suggestion of the death of a party. The reference to Rule 52.12 is not correct. The rule has been renumbered 52.13 and since its last amendment effective December 1, 1972, subparagraph (a) reads in pertinent part as follows: “52.13 Substitution of Parties— Dismissal (a) Upon Death. (1) If a party dies and the claim is not thereby extinguished, the court may, upon motion, order substitution of the proper parties. Suggestion of death may be made by any party or person in interest by the service of a statement of the fact of the death as provided herein for the service of a motion. A motion for substitution may be made by any party or by the successor or representative of the deceased party. Such motion, together with notice of hearing, shall be served upon the parties as provided in Rule 43.01, and upon persons not parties in the manner provided for the service of a summons. Unless a motion for substitution is served within 90 days after a suggestion of death is filed, the action shall be dismissed as to the deceased party without prejudice.”

It should be noted that whereas former Rule 52.12 made it mandatory upon the court to order substitution of parties after death after a proper motion is filed, new Rule 52.13 is couched in permissive language. Dismissal as to a deceased person is only mandatory if a motion for substitution is not served within 90 days after a suggestion of death is filed. Here, of course, the motion and suggestion of death were filed at the same time.

The problem readily becomes apparent in these procedural facts. No disposition has been made in the case as to the cause of action against defendant Truman R. Sample, the guardian of Caroline and principal on the bond. The plaintiff did not dismiss as to this defendant. In fact, plaintiff’s counsel requested there be no dismissal as to Sample. The court has not ordered a substitution of a personal representative of this deceased defendant. Instructions of the case submitted plaintiff’s cause of action only against the defendant Travelers Indemnity Company and the verdict and judgment were responsive to those instructions.

The question then arises as to whether it was necessary to have a personal representative appointed for the deceased guardian and defendant in this cause, Truman R. Sample, or whether it was possible to proceed to a separate judgment against the surety without a personal representative of the deceased guardian. As previously stated, this was a proceeding under § 473.207, supra. Estate of Sample v. Travelers Indemnity Company, supra, 492 S.W .2d at 830. This section and other sections relating to surety bonds of executors and administrators are made applicable to the bonds of guardians by § 475.100, RSMo. 1969. § 473.207 is a summary proceeding to determine the liability of the guardian (or executor or administrator) and is not to be confused with § 473.210, RSMo. 1969, which is an alternative remedy against a personal representative and the sureties “or either of them”. State ex rel. Langston v. Zorn, 138 Mo.App. 713, 119 S.W. 517, 519 (1909). § 473.210 authorizes a suit on the bond itself and under the terms of the section suit may be brought in any court of competent jurisdiction against all or any of the persons obligated on the instrument or responsible to the estate, as in the case of any suit on a joint and several obligation. § 473.207, however, is directed toward a determination of liability of the personal representative and does not even require a surety to be a party, but allows intervention. Prior to its adoption by Laws 1955, p. 385, § 89, a summary proceeding similar in nature was found in §§ 461.560 and 461.570, RSMo. 1949. As to this summary proceeding, our Supreme Court in an early decision, Brown v. Weatherby, 71 Mo. 152 (1879), stated that it was an alternative remedy to a suit on the bond but the statute contemplated the presence of the personal representative in order that he might obey the order of the court and deliver to his successor the assets of the estate. The court noted that he could not be deemed disobedient to the order of the court unless notified that such an order would be made and an opportunity thus afforded him either to yield obedience to that order or else show lawful excuse why the order should not be entered, (l.c. 154). Since the liability of the surety was dependent upon that of the principal, it was first necessary that this opportunity be given the principal. In commenting on Brown, the court in Judson v. Smith, 104 Mo. 61, 15 S.W. 956, 959 (1891), described the holding therein to be that under this proceeding the surety of a personal representative who is delinquent could not be proceeded against in the summary way provided for in that section unless the' delinquent principal were proceeded against at the same time. See also State ex rel. Langston v. Canterbury, 124 Mo.App. 241, 101 S.W. 678, 679 (1907) where it is stated that judgment in this summary type of proceeding must be against the principal, or personal representative, and the surety.

Although our present statute differs somewhat in terms, it is still summary in nature, dependent upon notice to the personal representative, and is a determination of the liability of the defaulting personal representative which is binding upon the sureties. The thrust of the section seems to be directed toward determination of the liability of the personal representative. In fact, once having determined the liability of the personal representative, a surety under subsection (3) of § 473.207, our present statute, is not even permitted to deny liability or to question his obligation. Under our view of this section, it appears that the court below has ignored the true nature of the inquiry and has treated the case as though it were a suit under § 473.210 which would authorize the finding of a judgment on the bond against the surety as in a suit upon a joint and several obligation.

Because there has been no disposition of the case as to the deceased guardian, we are immediately confronted with a problem of jurisdiction. Although the parties do not raise it, we have the independent duty of determining whether we have appellate jurisdiction. P.I.C. Leasing, Inc. v. Roy A. Scheperle Const. Co., Inc., 489 S.W.2d 219, 221[1] (Mo.App.1972).

“The right of appeal shall be as provided by law.” Rule 82.01. The law, by legislative enactment provides: “Any party to a suit aggrieved by any judgment of any trial court in any civil cause * * * may take his appeal to a court having appellate jurisdiction from * * * any final judgment in the case * * *.” § 512.020, RSMo. 1969. “A judgment is the final determination of the rights of the parties in the action." Rule 74.01; Barton v. City of Ellisville, 504 S.W.2d 202[1] (Mo.App.1973). “Generally speaking, a final, appealable judgment is one which disposes of all parties and all issues in the case.” State ex rel. Fletcher v. New Amsterdam Cas. Co., 430 S.W.2d 642, 644[3] (Mo.App.1968). The judgment here is not a final judgment. It did not dispose of the case as to the deceased guardian, defendant Truman R. Sample. Since this remains to be done, the appeal is premature and must be dismissed.

The appeal is dismissed.

McMILLIAN and RENDLEN, JJ., concur.


author: KELLY, Judge.

text:
    Ruth Tegethoff MARTIN, Plaintiff-Respondent, v. James A. MARTIN, Defendant-Respondent, Claude W. McElwee, Jr. and Jane E. McElwee, Movants-Appellants.
    No. 35790.
    Missouri Court of Appeals, St. Louis District, Division Two.
    March 2, 1976.

      Philip S. Alexander, St. Louis, for mov-ants-appellants.
    Robert C. Jones, Clayton, for plaintiff-respondent.
    David A. McMahon, St. Louis, for defendant-respondent.
   KELLY, Judge.

This appeal is, so far as we have been able to ascertain, one of first impression. It has its genesis in a partition suit filed by Ruth T. Martin against her former husband James A. Martin, culminating in the sale of property they owned by a Special Commissioner appointed by the Circuit Court of St. Louis County. The appellants, the purchasers of one of two parcels of respondents’ real estate sold at public auction by the Special Commissioner, bid in the property at $45,000.00 on June 29, 1973. On July 23, 1973, the Special Commissioner filed his Report of Sale with the Clerk of the Circuit Court and on that same day approved and confirmed the sale, publication expenses in connection with the sale amounting to $361.70 were allowed and the Special Commissioner was ordered to execute and deliver to the appellants a Special Commissioner’s Deed to the parcel of property at 11 Yorkhill Drive, St. Louis County, Missouri. On July 30 the Special Commissioner was awarded a fee of $1,875.00 and Mrs. Martin’s attorney a fee of $250.00. On August 6, 1973, the Special Commissioner filed his Application for Order of Distribution, and it is this document which is the bone of contention in this appeal.

According to the Application for Order of Distribution the Special Commissioner acknowledged receipt of $45,000.00 from the appellants for purchase of the parcel of realty and alleged that in addition thereto he had received from Mrs. Martin $17,-500.00 for the purchase of the other parcel; that certain specified costs and expenses, including fees and allowances, chargeable against the total sum received by him had been allowed and approved by the Court, to-wit: $361.70 for publishing notice of sale, $10.00 for his bond, $1,875.00 fee for Special Commissioner and a $250.00 fee for Mrs. Martin’s attorney. These, he alleged, to-talled $2,496.70. He further alleged that there were some costs and expenses chargeable against the proceeds received which had not as yet been allowed, and that these were court costs of $70.30 and “accumulated real property taxes of St. Louis County for the property described as Parcel 1 and commonly known as 11 Yorkhill Drive, St. Louis County,” in “the sum of $916.47 and to the Collector of Revenue, City of Brent-wood” in “the sum of $119.53,” totalling $1,036.00;” [r]eal estate taxes adjusted January 1 to date of sale, June 29, 1973, . in the sum of $518.00;” and “Parcel 1 sold at public auction with taxes paid through date of sale.” He further alleged that the total costs and expenses previously allowed amounted to $3,014.70 and that the costs and expenses payable, but not yet allowed “aggregated” the sum of $3,085.00, leaving a balance of $59,415.00 to be divided so that each of the Martins received the sum of $29,707.50. On the same day the aforesaid Application for Order of Distribution was filed, the trial court entered an order approving the Application for Order of Distribution as well as the allowances for fees for the Special Commissioner and plaintiffs attorney as prayed therein. On September 19, 1973, appellants filed their “Motion of Purchasers to Correct Arithmetical Mistake in Application of Special Commissioner for Order of Distribution” wherein they allege, among other things, that they did not receive a copy of the Application for Order of Distribution and therefore did not learn of his “erroneous mathematical computation” until September 10, 1973. The thrust of appellants’ Motion to Correct etc. is that in computing the total amount to be withheld from the proceeds of the sale the Special Commissioner failed to include real estate taxes due the City of Brentwood and St. Louis County for 1972, totalling $1,036.00; that, therefore, the amount which the Special Commissioner should have withheld from the proceeds of the sale was $4,121.00-rather than the $3,014.70 “mistakenly reported.” They further allege that this error is “evident from the Commissioners (sic) Report,” “mathematical in nature and should be corrected by this Court to comply with the true facts,” and seek to have the trial court correct “nunc pro tunc” to comply with the facts. In addition to the relief by way of nunc pro tunc order, appellants’ Motion further prays that the trial court enter its order requiring the Martins to make restitution of the funds with which “they were unjustly enriched in the amount of $518.00 each” and, failing such restitution, that a judgment be rendered against the Martins and each of them in that same amount.

On September 28, 1973, appellants’ Motion was heard, the movants, the parties to the partition suit and the Special Commissioner were granted time for the filing of briefs. On October 19, 1973, appellants’ Motion to Correct etc. was overruled by the trial court and on October 29, 1973, appellants filed their notice of appeal “from the Order of the Court overruling Motion of Purchasers to Correct Arithmetical Mistake in Application of Special Commissioner for Order of Distribution, which Order was entered on the 19th day of October, 1973.” The transcript from the trial court was filed in this Court on May 2, 1974, and on July 18, 1974, plaintiff-respondent filed her Motion to Dismiss Appeal and Suggestions in support thereof. On July 22, 1974, defendant-respondent likewise filed his Motion to Dismiss Appeal on the same grounds stated by plaintiff-respondent and adopted her motion by reference and incorporated therein her Suggestions in support of her motion. Appellants, on July 29, 1974, filed their Suggestions in Opposition and on December 12, 1974, this Court ordered that respondents’ Motions to Dismiss Appeal be taken with the case.

Respondents’ sole ground for dismissal of appellants’ appeal is that the notice of appeal was not timely filed, i. e., that having been filed on October 29,1973, it came more than forty days after the final judgment and order of the Circuit Court of St. Louis County entered on August 6, 1973, no motion for new trial having been filed. The thrust of respondents’ Suggestions is that the order of August 6, 1973, approving the Special Commissioner’s Application for Order of Distribution and allowance of fees is the judgment from which an appeal lies; that the appellants Motion to Correct etc., having been filed on September 19, 1973, came too-late, after the judgment had become final, and after the trial judge lost jurisdiction to vacate, reopen, correct, amend or modify his judgment pursuant to Rule 75.01 V.A.M.R. They further suggest that the notice of appeal from the judgment of August 6, 1973, filed by plaintiff-respondent on September 17, 1973, and withdrawn on November 1, 1973, did not extend the time within which the appellants could file their appeal from the judgment of August 6, 1973. With respect to the merits of appellants’ Motion to Correct, etc., respondents argue that what appellants seek is not available to them for the reason that the judgment had become final and immune from correction etc. pursuant to Rule 75.01 V.A.M.R., and the error sought to be corrected here is a mistake or oversight of the trial judge — a judicial error— and not a clerical mistake or misprision of the clerk. Aronberg v. Aronherg, 316 S.W.2d 675, 681[6] (Mo.App.1958).

Appellants respond that their appeal lies not from the order of August 6,197E, but as we have pointed out above, from the order of October 19, 1973, overruling appellants’ Motion to Correct, etc., and that their Notice of Appeal was filed within the time allowed by Rule 81.04. As might be expected, appellants also take issue with respondents’ position that the error sought to be corrected here is not one which can be corrected by a nunc pro tune order.

The right of appeal is purely statutory and in the absence of specific statutory authority therefor there is no right of appeal. If an appeal is not authorized by the statute we have no jurisdiction of the cause, and whether the parties object to the court’s jurisdiction, it is our duty to notice that question ex mero motu. Powell v. Watson, 516 S.W.2d 51, 52[1, 2] (Mo.App. 1974).

A purchaser of realty at a partition proceeding, where he is not a party to the proceedings, occupies a position affording him certain rights and liabilities which he may enforce and which he may be required to perform. It is clear, however, that he is under no duty to see that the purchase money he has paid to the Special Commissioner is properly distributed. 68 C.J.S. Partition § 220. It is the trial court having jurisdiction of the partition proceedings and of the funds resulting from the sale that determines how distribution shall be made and it is well settled law In this state that the final judgment in. a partition suit, where the sale of lands is had, is the order whereby the sale is approved and confirmed and the distribution of the proceeds of the sale provided for. England v. Poehlman, 359 Mo. 369, 221 S.W.2d 742, 744[1, 3] (Mo.1949). The appellants here have not appealed from that judgment and therefore respondents’ Motion to Dismiss for the reason that appellants’ notice of appeal was filed untimely is overruled.

The appellants here do not in their Motion to Correct etc. seek to have the final judgment in the partition proeeédings set aside. The purpose of their Motion Is to correct the judgment so that it reflects the judgment they contend the trial court Intended to enter with respect to the order of distribution, more particularly with respect to the real estate taxes for 1972 which they assert were delinquent and remain unpaid by the Special Commissioner. If, as they argue, the judgment the trial court intended to enter required that those taxes be paid out of the purchase price, but, because of a clerical error the judgment failed to reflect that, it would appear to us that they are, for that limited purpose at least, “parties” to the cause of action who are aggrieved by the order of the trial court denying their Motion to Correct and proper parties to appeal from that order within the terms of § 512.020 RSMo 1969.

While it is true that the appellants in this cause are not personally liable for the unpaid and delinquent 1972 real estate taxes on the parcel they purchased at the partition sale, State ex rel. Leachman v. Matoushek, 471 S.W.2d 686, 687[1] (Mo.App. 1971), § 140.640 RSMo 1969, nevertheless, if the realty was sold at a partition sale where the decree, the notice of sale, or the Special Commissioner at the time of sale assured the purchaser that the tax liens would be satisfied out of the purchase price, then, if the proceeds of the sale are sufficient to satisfy the tax liens, the taxes should have been reported to the trial court in the Special Commissioner’s Application for Order of Distribution as an expense of the sale, allowed and paid out of purchase price paid in by the appellants, and the tax Hens, if any, for 1972 satisfied so that appellants took the property free and clear of all tax liens. 68 C.J.S. Partition § 204, Weseman v. Wingrove, 85 N.Y. 353 (1881). We conclude that the appellants had standing to file the Motion to Correct etc. and to appeal from the order overruling that motion.

In Re Dugan, 309 S.W.2d 137, 143[14] (Mo.App.1957) the court said that one of the cardinal principles which pervades and hovers over all canons of construction is that statutes providing for appeal are to receive a liberal construction, and where a doubt exists as to the right of appeal it should be resolved in favor of that right. The statutes there under scrutiny were §§ 472.160 and 472.010 RSMo 1949 providing for appeals from orders, judgments or decrees of the probate court and the terms of the statute — “[a]ny interested person aggrieved” — broader than that in § 512.020 RSMo 1969. However, the interest there was that of a contingent debtor of the estate, the Missouri Pacific Railroad, which was seeking to have the order appointing letters issued to the public administrator for the purpose of bringing suit against the railroad for the wrongful death of the decedent. It would seem to us that if the railroad in Dugan had sufficient interest to appeal in that case where its liability was at best contingent, the appellants, who as we have concluded are “parties” to some extent, should be proper parties to pursue the appeal in this case from the order overruling their Motion to Correct, etc. See also Listerman v. Day and Night Plumbing and Heating Serv., 384 S.W.2d 111, 120[11] (Mo. App.1964). We hold that they are.

The remaining issue which needs to be resolved then is whether the trial court erred in its ruling. We conclude that from the record we have before us we are unable to hold that it did.

Any entry of judgment carries with it a presumption that it correctly states the judgment actually rendered, Aronberg v. Aronberg, supra, l.c. 681[7], and the burden is on the movant to show by competent evidence that a different judgment than that intended was in fact rendered. However, to justify the court in correcting its record by a nunc pro tunc order, the record must in some way show, either from the judge’s minutes, the clerk’s entries, or some paper in the cause, the facts authorizing such entries, and no such entries can be made from the memory of the judge, nor on parol proof derived from other sources. Aronberg v. Aronberg, supra, l.c. 680[4].

In passing, we note that despite the fact the pleadings of both parties to the partition suit prayed that although they knew of no liens or encumbrances on the property appearing of record they prayed that the property be sold and that all valid liens, judgments and other encumbrances of record be paid. The Decree in Partition, however, does not so provide, ordering only that the property be sold at public sale to the highest bidder as provided by law, for cash, and that the proceeds of the sale be apportioned among the parties as their respective interests appear. The published Notice of Sale is not a part of the record before us, so we are unable to discern from it whether it notified those interested in bidding at the sale whether the properties were to be sold free of any tax liens. No record was made of what the Special Commissioner may have said in this respect at the time of sale, but, as we shall hereinafter note, it is clear that the Special Commissioner understood that the properties were to be sold free and clear of “[r]eal estate taxes adjusted January 1 to date of sale June 29, 1973” and apparently those taxes have been paid. The basis for appellants’ position that the judgment entered was not that intended is the Application of the Special Commissioner for Order of Distribution, and more particularly paragraph 4, thereof, which reads as follows:

“4. That the accumulated real property taxes of St. Louis County for the property described as Parcel 1 and commonly known as 11 Yorkhill Drive, St. Louis County, in the sum of:
$916.47
and to the Collector of Revenue, City of Brentwood, is in the sum of:
$119.53
real estate taxes, Parcel 1, totaling:
$1,036.00
Real estate taxes adjusted January 1 to date of sale June 29, 1973, is in the sum of:
$518.00
Parcel 1 sold at public auction with taxes paid through date of sale.” (Emphasis supplied).

Appellants argue from this that the amount of 1972 taxes due to St. Louis County was the sum of $839.72, interest in an amount of $58.78 and penalties in an amount of $17.97, totalling $916.47. That the $119.53 figure due the City of Brentwood for 1972 taxes, included interest and penalties. The sum of these two equals the figure of $1036.00 set out by the Special Commissioner as the total of the taxes due on Parcel 1, which, the appellants would have us find “from the record” are 1972 taxes which remain unpaid. There is no evidence in the record, however, to support this argument.

We are not favored with a brief by respondents and we would be remiss if we did not point out that it is because of the failure of the respondents to respond to the arguments of the appellants that this court was given an onerous burden to do its own research, computations, etc. Plaintiff-respondent’s counsel was paid for his services in the partition suit out of the purchase price and was therefore under a duty to the defendant to see that the sale was properly conducted. Where the judgment is attacked either directly or collaterally, and his client’s interest in the amount of the proceeds to be distributed to her are in question, counsel should have filed a brief in this court to aid and assist us in disposing of the issues raised. Sandrowski v. Sandrowski, 230 Mo.App. 1056, 93 S.W.2d 81, 84[9] (Mo. App.1936).

Nevertheless, we have concluded that the trial court was presented with the opportunity of correcting its own records, held a hearing, and found that the judgment entered was the judgment intended. Despite appellants’ protestations that Paragraph 4 of the Special Commissioner’s Application for Order of Distribution had reference to 1972 taxes which were delinquent, we find no evidence in this record that those taxes were due and remain unpaid. Rather, as we construe the Application, the taxes the Special Commissioner reported to the trial court were the 1973 taxes, pro-rated from 1 January, 1973, to date of sale, June 29,1973. Nowhere in the Application is there any reference to 1972 taxes. Furthermore, if, as appellants would have us conclude, the 1972 taxes amounted to $1,036.00, including interest and penalties on both the county and municipal taxes, it would be by the most unusual coincidence that the 1973 taxes, which were due January 1, 1973 but not delinquent until after December 31, 1973, would equal the exact same amount as the 1972 taxes sans penalties and interest. We conclude that the trial court did not err in overruling appellants’ Motion to Correct etc. Whatever other remedies are available to appellant we have not considered nor do we express an opinion thereon.

We affirm.

CLEMENS, P. J. and STEWART, J., concur.


author: GUNN, Judge.

text:
    Edward BRAND, Plaintiff-Respondent, v. Shirley BRAND, Defendant-Appellant.
    No. 36794.
    Missouri Court of Appeals, St. Louis District, Division Three.
    March 2, 1976.

      Thurman, Nixon, Smith, Howard, Weber & Bowles, Jeremiah Nixon, Dana Hocken-smith, Hillsboro, for defendant-appellant.
    Richeson, Roberts & Wegmann, Gasaway, Stewart & Schneider, John A. Schneider, Hillsboro, for plaintiff-respondent.
   GUNN, Judge.

This appeal is from an order of the Jefferson County circuit court modifying child custody provisions arising out of a dissolution of marriage decree. The appellant-mother asserts that the trial court erred: 1) in failing to find that the respondent-father had committed fraud upon the trial court at the dissolution of marriage proceeding by providing the court with an incorrect address of the mother for the purpose of sending the ten day notice letter referred to in § 452.320(1) RSMo. Supp.1974; and 2) in disallowing evidence at the modification hearing touching on the father’s fitness and which occurred prior to the dissolution hearing. We find no error and affirm the trial court’s action.

After a rather tempestuous marriage, the mother and father of the children involved separated from their Imperial, Missouri home on or about February 15, 1974. The father took the couple’s eight year old son from school and moved with him to live in St. Louis. The mother took the five year old daughter to live with her in Illinois. There was no evidence that either party knew the address to which the other had moved, except that the father had sent some mail to the mother at her sister’s address in Rosewood Heights, Illinois. The mother did not live at Rosewood Heights but had, in fact, moved to Alton, Illinois leaving a change of address card with the Imperial, Missouri post office listing her forwarding address at Alton, Illinois.

On April 9, 1974, the father filed a petition for dissolution of marriage in the Jefferson County circuit court. He also filed an affidavit .of publication asserting that the address of the mother was unknown. On May 30,1974, a hearing was held on the father’s dissolution of marriage petition at which time he gave the following testimony regarding his knowledge of the mother’s whereabouts:

“Q. What was that mailing address?
A. Route 3, Box 511, Imperial, Missouri.
Q. Is this the last known address you know about where Shirley Brand lived?
A. Yes, sir.
Q. Have I informed you it is necessary to send the ten day letter?
A. Yes, sir.
Q. Is this the best address you can provide?
A. It is the only one I have.
Q. If she has a forwarding address it would go on to her?
A. Yes, sir.”

The trial court found the marital ligature of the mother and father to be irretrievably riven and dissolved the marriage, awarding custody of the two children to the father. The court noted that a question existed as to its jurisdiction over the daughter if she resided out of state. On May 31,1974, the day after the dissolution hearing, the father filed a change of address card with the Imperial, Missouri post office for a St. Louis address covering “E. J. Brand [father] and family.” Afterward no mail was forwarded to the mother in Illinois from the Imperial address, including the § 452.320(1) ten day notice letter which was returned to the Jefferson County circuit court unclaimed.

The mother subsequently filed a motion to modify the decree of the trial court as it related to the custody of the children and sought support and maintenance for the two children. A hearing was held on the motion to modify, and the trial court, obviously not insensate to its responsibilities and faced with a unenviable and distressing task, awarded custody of the daughter to the mother with child support. Custody of the son was awarded to the father. It is from the award of custody of the son to the father that the mother appeals.

On appeal, the mother charges that the father deliberately committed a fraud upon the court by stating that the best address known by him for the mother was the Imperial, Missouri address when he knew she did not live there, particularly since mail he had sent to the mother at her sister’s home in Rosewood Heights, Illinois had apparently been forwarded to the mother. The mother asserts that with investigation the father could have obtained her correct address. The mother also charges that the fraud was compounded by the father’s filing a change of address card with the Imperial post office for himself “and family” the day after the dissolution hearing; that such action was intended to keep the mother from receiving the § 452.320(1) ten day notice letter. The father contends that inasmuch as he was awarded custody of the children, the phrase “and family” on the change of address card was intended to apply only to him and his two children; that he did not intend to interfere with mail directed to the mother, particularly since she had not been at the Imperial address since February.

At the modification hearing the father testified that he had harbored no intent to defraud the court regarding the ten day notice; that he had no knowledge of the mother’s correct address. There was, in fact, no evidence to establish that the father did know the mother’s correct address. The trial court specifically found that at the time of the dissolution hearing the father had no knowledge of the mother’s residence and that there had been no fraud perpetrated on the court with regard to the ten day notice.

Our review of this court tried case is governed by Rule 73.01(3) V.A.M.R., which directs us to review the case on the law and the evidence, giving due regard to the trial court to have judged the credibility of the witnesses. Wurtz v. Daniel Hamm Drayage Co., 530 S.W.2d 752 (Mo.App.1975); Brunswick Corp. v. Briscoe, 523 S.W.2d 115 (Mo.App.1975). And while Rule 73.01, as amended effective January 1, 1975, deleted the phrase “the judgment shall not be set aside unless clearly erroneous” as it previously appeared in Rule 73.01(d), the appellate courts are still admonished not to be “judicial second guessers” as to trial court findings. Morris v. Holland, 529 S.W.2d 948 (Mo.App.1975). As stated in Morris v. Holland, supra, at 952:

“[T]hat when the decision depends upon the credibility of the witnesses and the weight of the evidence, an appellate court should generally defer to the findings of the trial court unless it is satisfied that they should have been otherwise.”

Giving effect to the foregoing legal rubric and after a careful review of the record, we cannot say that the trial court erred or should have ruled otherwise in finding that respondent did not commit fraud upon the court in obtaining the dissolution of his marriage from appellant. There is sufficient evidence from which the trial court could have concluded that respondent’s testimony concerning his knowledge of appellant’s address as of May 80, 1974 was honestly given with no intent to commit fraud upon the court, and when respondent filed the change of address form, he did so without any purpose to prevent appellant from receiving notice of the dissolution action.

We also observe that § 452.320(1), relating to the ten day notice, is not jurisdictional, in that the fact that a party fails to receive such notice does not attenuate or affect the trial court’s power to enter a dissolution of marriage decree or affect the validity of the court’s order in that regard. Thus, the fact that the mother did not receive a ten day notice had no effect on the court’s power to enter the dissolution of marriage order.

The mother’s challenge to the purported fraud is also debilitated by the fact that she does not challenge the trial court’s decree relating to the dissolution of the marriage — only the question relating to child custody. Yet, argument that fraud was committed on the trial court relating to the ten day notice would go to the entire decree, including the dissolution of marriage and not just that portion relating to child custody. The mother cannot properly argue that the dissolution decree may stand but that the custody award may not. Furthermore, the question of fraud in obtaining the dissolution would seem to have little or no relevance in determining the proper parties to have custody of the minor children.

The mother’s second assignment of error is that the trial court at the child custody modification hearing improperly excluded relevant evidence, touching on the father’s fitness, occurring prior to the date of the dissolution decree which was unknown to the court at the time of the dissolution hearing. The court stated that it would not allow substantive evidence of events regarding the father’s fitness occurring prior to the date of the dissolution of marriage hearing. However, the trial court did allow substantially all of the evidence offered by the mother as it related to the conduct of the father, including testimony concerning events which occurred as many as eight years prior to the date of the dissolution decree. Thus, the court had for its consideration facts regarding the.father’s fitness unknown to the court at the time of the hearing on the dissolution of the marriage. The record contains substantial evidence that both children were properly eared for by the respective parents during the period of them separation and while each had one child. The court could reasonably conclude that the quality of care for each child would not be diminished in the future.

In matters involving the custody of minor children of divorced parents, there are no precise and inflexible rules to be applied in every instance. Each case must be decided on its own particular facts. But overriding all other considerations is the court’s paramount concern of reaching the result which is in the best interests and welfare of the children. E. C. S. v. J. D. L., 529 S.W.2d 423 (Mo.App.1975). The ruling of the trial court concerning the proper party to have custody, thérefore, is “not to be lightly disturbed and will be deferred to unless the court is firmly convinced that the welfare of the children requires some other disposition.” Ackfeld v. Ackfeld, 483 S.W.2d 614, 616 (Mo.App.1972). The appellate courts must proceed under the presumption that the trial court has considered all of the evidence and has decreed custody in what it believed to be the children’s best interest. E. C. S. v. J. D. L., supra.

Once custody has been fixed the court may make a modification only upon a showing of changed circumstances of the child or custodian as manifested by facts which have arisen since the prior decree or which existed at the time of the decree but were unknown to or concealed from the court. And even then modification may be made only where it is necessary to promote the welfare of the child. Section 452.410 RSMo. Supp.1974; McFadden v. McFadden, 509 S.W.2d 795 (Mo.App.1974); J. L. W. v. D. C. W., 519 S.W.2d 724 (Mo.App.1975).

The evidence regarding the father’s conduct prior to the dissolution hearing, • particularly regarding conduct several years prior to the hearing, reveals some totally undesirable personality traits. But despite the evidence of the father’s past unfavorable characteristics prior to the dissolution decree and not made available to the court at the dissolution hearing, there was ample evidence for the trial court to find that the father had and could properly care for the son. See Glaves v. Glaves, 523 S.W.2d 169 (Mo.App.1975). We believe that there was sufficient evidence for the court to find, as it did, giving effect to the tenet that the child’s best interest predominates other considerations; that the father was fit to have custody of his son. Meinking v. Meinking, 529 S.W.2d 440 (Mo.App.1975); E. C. S. v. J. D. L., supra. In view of the trial court’s finding of fitness of the father during his period of custody of the son — for which there is substantial evidentiary support — cases concerning evidence regarding conduct of the parties prior to the first custody decree are not particularly apropos.

The evidence supports the conclusion of the trial court that the welfare of the children is met by the trial court’s award of custody.

The modification decree is affirmed.

SIMEONE, P. J., and KELLY, J., concur.

      . § 452.320(1) RSMo. Supp.1974 provides: “1. If both of the parties by petition or otherwise have stated under oath or affirmation that the marriage is irretrievably broken, or one of the parties has so stated and the other has not denied it, the court, after considering the aforesaid petition or statement, and after a hearing thereon shall make a finding whether or not the marriage is irretrievably broken, and where one of the parties has not denied it the court shall cause to be deposited in the United States mail an envelope, certified or registered, deliver to addressee only, return receipt requested, and with postage prepaid, (enclosing a notice to the party not denying that absent objection from said party being filed within ten days after date of mailing that a finding the marriage is irretrievably broken and an order of dissolution of the marriage may be entered of record) The failure of such party to receive such notice shall not impair the power of the court to enter an order dissolving the marriage or the validity of such an order;”

      . Even with the deletion of the “clearly erroneous” phrase from Rule 73.01, recent appellate court decisions still cling to the interpretation that under Rule 73.01(3) the judgment of the trial court in a court tried case is not to be set aside unless clearly erroneous. Farmers Alliance Mut Ins. Co. v. Reed, 530 S.W.2d 470 (Mo.App.1975); Ehrle v. Bank Bldg. & Equip. Corp., 530 S.W.2d 482 (Mo.App.1975); Keokuk Investment Co. v. Doerhoff, 530 S.W.2d 507 (Mo.App.1975).

      . See In re Wakefield, 365 Mo. 415, 283 S.W.2d 467 (banc 1955), J. L. W. v. D. C. W., supra, G. C. J. v. G. G., 510 S.W.2d 193 (Mo.App.1974), and McFadden v. McFadden, supra, for a discussion of admissibility of evidence unknown to or concealed from the court at the time of a prior hearing or decree.


author: HOGAN, Judge.

text:
    STATE of Missouri, Respondent, v. Jimmy Wayne BEGLEY, Appellant.
    No. 9869.
    Missouri Court of Appeals, Springfield District.
    March 4, 1976.

      John B. Newberry, Springfield, for appellant.
    John C. Danforth, Atty. Gen., Robert H. House, Asst. Atty. Gen., Jefferson City, for respondent.
    Before STONE, P. J., and HOGAN and TITUS, JJ.
   HOGAN, Judge.

By amended information defendant was charged with felonious stealing, as defined and denounced by §§ 560.156 and 560.161, sec. 1, subsec. (2), RSMo 1969. On June 3, 1974, defendant appeared in person and with counsel in open court. Arraignment was waived by counsel. The trial court asked defendant to identify himself, asked him if he were represented by counsel, and asked if defendant understood “that anything [counsel] says here is the same as though you were saying it”. Defendant answered all these questions affirmatively. Addressing defendant’s counsel, the court called upon the defendant to plead. Counsel answered, “We enter a plea of guilty to the charge.” The court then inquired if defendant had “the questionnaire” filled out. The prosecutor and defendant’s counsel announced that no questionnaire had been completed, because there were no blank forms available. The prosecutor stated and defendant’s counsel agreed that some plea bargaining discussion had taken place. The trial court advised defendant that it did not “pay much attention” to plea bargains struck between the prosecutor and defense counsel, but indicated that it would rely on the presentence report. Advising defendant’s counsel to fill out one of the questionnaires the trial court then made the following docket entry: “Amended Information filed. Reading of Information waived. Defendant files questionnaire. Defendant enters plea of guilty. Pre-sen-tence investigation ordered.”

Four months thereafter, defendant, with additional counsel, appeared before the court and asked leave to file a motion to withdraw the plea of guilty, but the trial court, for various reasons, refused, granted allocution and sentenced defendant to two years’ imprisonment. On October 15, 1974, defendant filed motions to “strike” or set aside the sentence, and moved in writing to set aside the plea of guilty and to grant defendant an evidentiary hearing. The trial court then filed orders made earlier, which we shall presently discuss, held a hearing, denied the motion to set aside the plea of guilty and sentenced defendant to imprisonment for a term of two years. Defendant has appealed.

The State concedes the order denying defendant’s motion to withdraw his plea of guilty is appealable, and we agree. State v. Skaggs, 248 S.W.2d 635, 636[2] (Mo.1952); State v. Stephens, 71 Mo. 535, 536-537 (1880). What has given us difficulty in this case is the state of the record, which we have tried — with minimal success — to call to the attention of the parties. It may be that Rule 28.02 no longer requires us to scrutinize and consider what used to be called the “record proper” but it nevertheless seems to us that basic constitutional requirements, as indicated in Anders v. California, 386 U.S. 738, 744-745, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493, 498 (1967), at least require this court to read the whole record, especially in view of the fact that defendant’s appeal to this court is his “appeal of right”. See Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974); State v. Barnes, 517 S.W.2d 155, 168-169 (Mo.App.1974).

Examining the whole record, we find that the purported sentence and judgment of the trial court is a docket entry dated October 17, 1974, which reads as follows:

“Motion to set aside defendant’s plea of guilty heard at evidentiary hearing. Overruled. Allocution granted. Defendant sentenced to term of two years (2 yrs.) with the Department of Corrections at Jefferson City, Mo. Guard Ordered.”

Careful, direct inquiry on our part reveals that no judgment and sentence have ever been spread of record in Cedar County; the docket entry we have just recited is “all there is”. The State considers that the proper course for this court to follow, as indicated in Skaggs, supra, 248 S.W.2d at 638[9], would be to remand the cause for proper sentencing, but having examined the record further, we decline to do so.

Having sentenced the defendant to two years’ imprisonment on October 8, and having — presumably—seen 1) defendant’s written “motion to set aside defendant’s plea of guilty and . . . grant defendant an evidentiary hearing”, and 2) defendant’s motion to strike the order of October 8 sentencing defendant to two years’ imprisonment, the trial court, on October 10,1974, made the following docket entry:

“Defendant files motion to strike entry made Oct. 8, 1974. Sustained. Defendant files motion to withdraw plea of guilty and enter plea of not guilty on grounds of newly discovered evidence. Sustained, (our emphasis) Matter set for hearing October 16, 1974.”

This docket entry was expanded and spread of record on October 15, 1974. The order of record reads as follows:

“Now on this 10th day of October, 1974, the Motion of Defendant, James Wayne Begley, to strike the finding of the Court entered on the 8th of October, 1974, finding said defendant guilty and affixing his punishment at two years in the custody of the Department of Corrections of the State of Missouri, comes on for hearing and the same being heard, the Court does sustain said Motion and orders that said findings be stricken from the record. Further, the motion of defendant to set aside Ms plea of guilty for an evidentiary hearing comes on for hearing, the motion for an evidentiary hearing is sustained and the same is set for October 17, 1974, at 9 o’clock a. m. in the Circuit Court of Cedar County, Missouri, at Stockton. The Motion to set aside the plea of guilty is held in abeyance pending such hearing.”

We find this order inconsistent and confusing. The only “finding” necessary in connection with defendant’s plea of guilty was a finding that defendant appeared (with counsel, unless properly waived) and that the plea itself was voluntarily entered. A guilty plea voluntarily made constitutes a conviction of the highest order, and authorizes immediate sentence if the indictment or information charges any crime. Dusenberg v. Rudolph, 325 Mo. 881, 886, 30 S.W.2d 94, 96 (banc 1930); State v. Hamilton, 337 Mo. 460, 465, 85 S.W.2d 35, 37[6] (1935). In determining what order the trial court actually entered, we can, of course, examine the records, the docket (which we have had supplied), the clerk’s minutes and the record generally, Calnane v. Calnane, 223 Mo.App. 381, 384-385, 17 S.W.2d 566, 567[3] (1929), but our examination of the whole record only leads us to the conclusion that on October 10 the trial court, inadvertently or otherwise, set aside the defendant’s guilty plea. We are hesitantly drawn to this conclusion, but our doubt must be resolved in favor of the defendant. Cf. McCracken v. Kaiser, 352 Mo. 799, 800, 179 S.W.2d 470, 471[4] (banc 1944).

In these peculiar and confusing circumstances, we must hold that the following rule of law, generally but accurately stated in 22 C.J.S. Criminal Law § 421(8), pp. 1166-1167 (1961), governs.

It is there said:

“[A]n order allowing withdrawal of a plea of guilty after judgment is tantamount to an order setting aside the judgment, as, when the plea is withdrawn, the judgment falls for lack of support. The withdrawal of a plea does not affect the arraignment. Accused merely stands in the same attitude, and with the same rights and privileges, as if no plea had been entered; and a new plea, if offered by him, must be received if sufficient.”

See, in this connection, Kercheval v. United States, 274 U.S. 220, 224, 47 S.Ct. 582, 583, 71 L.Ed. 1009, 1012 (1927); United States v. Denniston, 89 F.2d 696, 698[5, 6] (2d Cir. 1937); Gibbons v. Territory, 5 Okl.Cr. 212, 115 P. 129, 131[14] (1911). We must, and do hold, that upon the record, the cause stands before the trial court without a valid plea to the charge.

Even if the record were otherwise, we have serious doubt that the record sustains the trial court’s conclusion that the plea was voluntarily entered, but we need not discuss the basis for our reservation in this respect. It is ordered that the cause be remanded and that defendant be allowed to plead anew.

All concur.

      . All references to statutes and rules are to RSMo 1969, V.A.M.S., and V.A.M.R.


author: BILLINGS, Chief Judge.

text:
    Dorothy CASE, Plaintiff-Appellant, v. UNIVERSAL UNDERWRITERS INSURANCE COMPANY, Defendant-Respondent.
    No. 9942.
    Missouri Court of Appeals, Springfield District.
    March 12, 1976.
    Motion for Rehearing or To Transfer to Supreme Court Denied March 25, 1976.
    Application To Transfer Denied April 14, 1976.

      Donald W. Jones, Prewitt, Jones & Kar-chmer, Russell G. Clark, Woolsey, Fisher, Clark, Whiteaker & Stenger, Springfield, for plaintiff-appellant.
    B. H. Clampett, William D. Powell, Daniel, Clampett, Ellis, Rittershouse & Dalton, Springfield, for defendant-respondent.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   BILLINGS, Chief Judge.

Suit in equity under § 379.200, RSMo 1969, to reach and apply insurance money to satisfy a judgment. Appellant Dorothy Case had obtained a $45,000 judgment against Jon Devine for personal injuries arising from a vehicular collision involving a 1965 Corvair automobile driven by Jon Devine. In this suit the trial court concluded Devine was the lawful owner of the Corvair at the time of the collision and respondent’s garage liability policy, issued to Frank Dreier Pontiac-Cadillac, afforded no coverage on the Corvair. We conclude otherwise and reverse and remand for entry of judgment in favor of appellant.

The case was submitted to the trial chancellor on the pleadings, stipulation, exhibits and depositions. Our review is upon the law and evidence [Rule 73.01], and being de novo, we reach our own conclusions therein and give such judgment as should have been given if we decide the lower court’s judgment is erroneous. Rule 84.14. Credibility of witnesses is not here involved and the rule of deference mandated by Rule 73.01 is not applicable. Meyers v. Smith, 375 S.W.2d 9 (Mo.1964); Mid-Continent Nat’l Bank v. Bank of Independence, 523 S.W.2d 569 (Mo.App.1975); Smith v. Thomas, 520 S.W.2d 132 (Mo.App.1975).

In order to arrive at the controlling issue in this appeal, a history of the various transactions involving the 1965 Corvair is necessary.

1. August 20, 1966, William M. Whitaker purchased the used Corvair from the Turner Chevrolet Agency for his son, William M. Whitaker, Jr. Because the son was either under age or had no prior credit standing with General Motors Acceptance Corporation [GMAC], the sale was made to Mr. Whitaker. The father signed the note and security agreement for the Corvair, and the certificate of title [No. 356427] was duly assigned and delivered by the dealer to William M. Whitaker. A new certificate of title [No. 5655949], describing William M. Whitaker as the registered owner of the Corvair and GMAC as lien holder, was issued by the Missouri Department of Revenue. This certificate of title was forwarded to GMAC in St. Louis and remained there until August 7, 1969.

2. May 16, 1969, William M. Whitaker, Jr., took the Corvair to the Frank Dreier Pontiac-Cadillac Agency at Flat River and traded it for a later model car. As a part of this transaction, the agency agreed to pay the balance owing GMAC. Whitaker, Jr., delivered the Corvair to the agency at the time and took possession of the later model car. The Corvair was placed on the agency’s used car lot for sale. The William M. Whitaker certificate of title was not assigned and delivered at the time the Cor-vair was delivered to Frank Dreier Pontiac-Cadillac.

3. July 26, 1969, Jon Devine, a minor employed by Frank Dreier Pontiac-Cadillac, purchased the Corvair from his employer and was given possession of the car. No certificate of title to the Corvair was delivered to Devine.

4. August 4,1969, Frank Dreier Pontiac-Cadillac paid GMAC the balance due on William M. Whitaker’s note.

5. August 7, 1969, GMAC released its lien on the Corvair and mailed the William M. Whitaker certificate of title [No. 5655949] to Frank Dreier Pontiac-Cadillac.

6. August 8, 1969, the assignment portion of the certificate of title was signed with the name of “William M. Whitaker” and notarized as of that date. The re-assignment by a registered dealer portion of the certificate of title shows an assignment by Frank Dreier Pontiac-Cadillac to Jon Devine dated and notarized on July 24, 1969, and shows a lien in favor of the agency under date of July 4, 1969. This certificate of title was forwarded to the Department of Revenue in Jefferson City. The same notary public, an employee of Frank Dreier Pontiac-Cadillac, took both acknowledgements.

7. August 29, 1969, a new certificate of title [No. A847644] to the Corvair, describing Jon Devine as owner and Frank Dreier Pontiac-Cadillac as lien holder, was issued by the State of Missouri and mailed to the agency.

Other facts considered by the trial court in ruling the case and not in dispute are as follows:

(a) William M. Whitaker, the father, was described as the registered owner of the Corvair on certificate of title No. 5655949 and never assigned the certificate of title to Frank Dreier Pontiac-Cadillac.

(b) William M. Whitaker, Jr., had exclusive use and possession of the Corvair from the time it was purchased until traded to Frank Dreier Pontiac-Cadillac. Whitaker, Jr., made all the payments to GMAC until the Corvair was traded to Frank Dreier Pontiac-Cadillac.

(c) Jon Devine agreed to purchase the Corvair from Frank Dreier Pontiac-Cadillac on July 24, 1969, for $695 and was to pay this sum by his employer withholding $15 per week from his salary.

(d) An application for title for the Cor-vair, showing Devine as purchaser and the agency as a lien holder as of July 4, 1969, and requesting the new certificate of title be mailed to Frank Dreier Pontiac-Cadillac, was prepared by that agency on July 26, 1969. Devine signed the application for title and took copies of it to the local branch office of the Department of Revenue where he paid sales tax and fees and was issued license plates for the car. The document was forwarded to Jefferson City and placed in a “suspense file” to await receipt of the lien perfection copy of the application for title and the outstanding certificate of title to the Corvair [No. 5655949].

(e) Jon Devine had exclusive use, control and possession of the Corvair from July 26, 1969, and was driving the car when the collision in which appellant was injured occurred on September 11, 1969. Thereafter, Devine rescinded his purchase of the car, and Frank Dreier Pontiac-Cadillac took possession of the wrecked car and withheld no further payments from Devine’s salary.

(f) In Devine’s negotiations for purchase of the Corvair his employer never discussed or mentioned the assignment of a certificate of title to him and he never saw or received one.

It was and is appellant’s theory that at the time of the collision Devine was not the owner of the Corvair because there had been no delivery of a properly assigned title by William M. Whitaker at the time the car was delivered to Frank Dreier Pontiac-Cadillac as required by § 301.210, RSMo 1969, and thus the Corvair was covered under respondent’s garage liability policy. Alternatively, appellant contends there was no proper assignment of the certificate of title from the agency to Devine. Under either theory, appellant claims Devine was not the owner of the Corvair but was driving it with the permission of respondent’s insured.

Respondent urges that Devine, by reason of the various matters heretofore enumerated, was the owner of the Corvair because the State of Missouri had so described him in the August 29, 1969, certificate of title and judicial inquiry into the fact of lawful ownership is therefore foreclosed.

The trial court made and entered findings of fact and conclusions of law. In our view the determinative finding is the conceded fact that the registered owner of the Cor-vair, William M. Whitaker, never assigned the certificate to anyone. The court proceeded on the erroneous premise that young Whitaker was the owner of the Corvair within the meaning of the statute and an assignment by him to Frank Dreier Pontiac-Cadillac was sufficient. This, however, ignores the fact that William M. Whitaker was the registered owner of the vehicle; and secondly, there is no evidence that young Whitaker assigned the title.

§ 301.210(4), RSMo 1969, provides: “It shall be unlawful for any person to buy or sell in this state any motor vehicle or trailer registered under the laws of this state, unless at the time of the delivery thereof, there shall pass between the parties such certificate of ownership with an assignment thereof, as herein provided, and the sale of any motor vehicle or trailer registered under the laws of this state, without the assignment of such certificate of ownership, shall be fraudulent and void.” (emphasis added).

To be a valid assignment within the meaning of the statute the form prescribed by the Director of Revenue and found on the reverse side of the certificate of ownership, must be completed, signed by the registered owner, and duly acknowledged before a qualified notary public. Pearl v. Interstate Securities Co., 357 Mo. 160, 206 S.W.2d 975 (1947).

The mandatory requirements of § 301.210 are intended to hamper traffic in stolen vehicles and to reduce fraud and deceit in the sale of used cars. State v. Glenn, 423 S.W.2d 770 (Mo.1968); Fawley v. Bailey, 512 S.W.2d 477 (Mo.App.1974). To accomplish this end, the General Assembly has declared that attempted sales of automobiles in violation of the statute are “fraudulent and void.” The Department of Revenue cannot always determine if the statute has been duly complied with by an examination of the documents which must be filed in order to obtain a certificate of title, and it would be contrary to the will of the Legislature to declare that the issuance of a certificate of title gives validity to a transaction it has made void. The Missouri courts have held that a certificate of title is only prima facie evidence of ownership which may be rebutted. Manchester Ins. & Ind. Co. v. State Farm Mut. Auto. Ins. Co., 460 S.W.2d 305 (Mo.App.1970); Melugin v. Imperial Cas. & Ind. Co. of Omaha, Neb., 344 S.W.2d 144 (Mo.App.1961); Wilks v. Stone, 339 S.W.2d 590 (Mo.App.1960); Crawford v. General Exchange Ins. Corp., 119 S.W.2d 458 (Mo.App.1938).

To accept the certificate of title as conclusive proof of ownership would allow it to become an instrument of the fraud and deceit the statute was intended to prevent. For example, in Fawley v. Bailey, supra, Fawley’s truck and certificate of title were stolen. The thief sold the truck to a dealer who notarized an assignment of the certificate of title, to which the thief had signed Fawley’s name, with the name of the as-signee left blank. The dealer sold the truck to a second dealer who inserted his company’s name as assignee in the assignment signed by the thief. The second dealer then acquired a new certificate of title in his company’s name even though he knew the title had not been assigned in the manner required by the statute.' We held that title to the truck had not passed because of the failure to properly assign the certificate of title and allowed Fawley to recover the value of his truck.

Numerous decisions have held that an attempted sale of a used car is absolutely void and passes no title whatsoever unless there is strict compliance with the requirement of the statute that a properly assigned certificate of title pass to the buyer “at the time of delivery” of the motor vehicle. National Indemnity Co. v. Liberty Mut. Ins. Co., 513 S.W.2d 461 (Mo.1974); State v. Glenn, 423 S.W.2d 770 (Mo.1968); Bonnell v. Mahaffey, 493 S.W.2d 688 (Mo. App.1973); Bank of Jasper v. Langford, 459 S.W.2d 97 (Mo.App.1970); Moore v. State Farm Mut. Auto. Ins. Co., 381 S.W.2d 161 (Mo.App.1964).

Other cases have held the statute was satisfied if the delivery of the title certificate was “reasonably contemporaneous” with the delivery of the motor vehicle. State Farm Mut. Auto. Ins. Co. v. MFA Mut. Ins. Co., 485 S.W.2d 397 (Mo.banc 1972); Bank of Jasper v. Langford, supra; McIntosh v. White, 447 S.W.2d 75 (Mo.App. 1969); Galemore v. Mid-West National Fire & Cas. Ins. Co., 443 S.W.2d 194 (Mo.App. 1969); Kahn v. Lockhart, 392 S.W.2d 30 (Mo.App.1965).

“At the time” has also been interpreted to mean “a series of acts which, taken together, constitute one continuous transaction”. Ashby v. National Bond Finance Company, 343 S.W.2d 218 (Mo.App.1960); World Investment Co. v. Kolburt, 317 S.W.2d 697 (Mo.App.1958); Saffran v. Rhode Island Ins. Co. of Providence R. I., 141 S.W.2d 98 (Mo.App.1940).

Here, we have a situation where William M. Whitaker, Sr., admittedly the person described in the certificate of title as the registered owner of the Corvair, never completed the assignment form or subscribed his name thereto at the time the Corvair was delivered to Frank Dreier Pontiac-Cadillac, nor at any subsequent time. This transaction was, in the language of the statute, “fraudulent and void.”

The second sale of the Corvair, from the automobile agency to Jon Devine, a separate and distinct transaction, fares no better. Without a proper assignment from William M. Whitaker, Sr., there could not be a valid re-assignment by Frank Dreier Pontiac-Cadillac to purchaser Jon Devine, aside from the fact that the certificate of title did not accompany the delivery of the car to Devine “at the time”, “reasonably contemporaneous”, or as “one continuous transaction”.

We need not speculate as to the identity of the person who affixed the registered owner’s name to the certificate of title under date of August 8, 1969, nor tarry over the fact the document shows a reassignment predating the purported assignment to the agency. This abortive assignment cannot’breathe life into the first transaction wherein Frank Dreier Pontiac-Cadillac took possession of the Corvair following the trade of vehicles with young Whitaker.

The respondent strongly urges that under the decisions of National Indemnity Company v. Liberty Mutual Insurance Company, 513 S.W.2d 461 (Mo.1974), and Insurance Company of North America v. Alexander, 321 F.Supp. 697 (E.D.Mo.1970), aff’d sub nom. Insurance Company of North America v. Schaefer, 441 F.2d 1170 (8th Cir. 1971), there was constructive delivery of the certificate of title to the Corvair by Frank Dreier Pontiac-Cadillac to Devine. Further, following this constructive delivery of the certificate of title the State of Missouri issued a new title certificate in Devine’s name as owner, and thus he was the lawful owner of the Corvair at the time of the collision.

We have carefully examined the foregoing cases and conclude they have no application to the factual situation before us. In both cases there had been proper assignments by the registered owners and delivery of the certificates of title to the dealers. The dealers had properly re-assigned the certificates of title to the purchasers, and with the knowledge and consent of the purchasers delivered the properly assigned certificates to the lending institutions financing the purchases. By reason of the purchasers’ acquiescence in this mode of delivery of the properly assigned title certificates, the court in each case held there had been compliance with § 301.210 by virtue of constructive delivery of the title certificates at the time the purchasers were delivered possession of the vehicles.

In our view the rule followed in Greer v. Zurich Insurance Company, 441 S.W.2d 15, 23 (Mo.1969), and the cases cited therein, is decisive here: . “ ‘The requirements of § 301.210 are definite and positive; and strict compliance is required by our decisions (hereinabove cited) to pass title to any motor vehicle. Therefore, we hold that until the certificate of title properly assigned is delivered by the seller to the buyer the buyer does not become the owner. We further hold that, when the seller delivers a motor vehicle to the buyer without delivering to him the certificate of title, he is permitting the buyer to use the vehicle so as to make him an additional insured, under the policy provision herein involved, until title passes to him.’ ”

Applying the foregoing rule to the facts at hand, we must conclude the first transaction between young Whitaker and Frank Dreier Pontiac-Cadillac did not comply with § 301.210, nor did the sale by the agency to Devine. In neither transaction was there a delivery of a properly assigned certificate of title by the registered owner of the Corvair.

The provisions of respondent’s policy in the instant case are nearly identical to the provisions examined by the Supreme Court in the Greer case. There, after tracing the various sales of the automobile in that case without the delivery of a properly assigned certificate of title, the court held the policies of the different sellers afforded coverage to the last purchaser as a permissive user of the car.

With commendable candor, counsel for respondent, both in their brief and in oral argument, acknowledge the general rule found in Couch on Insurance 2d, Vol. 12, § 45:386, and cited and followed in Greer, to-wit:

“For the purpose of the application of an omnibus clause there is authority that a sale has no legal significance where the title has not been technically transferred, although in all other respects the sale is complete. In such circumstances the seller remains the owner and therefore has the power to give permission to the buyer to use the car, and such permission brings the latter within the scope of an omnibus clause.”

In this appeal respondent has sought to avoid the application of the foregoing rule by taking the position that the issuance of a new certificate of title to the Corvair in Devine’s name by the Department of Revenue vested him with legal ownership of the automobile. As we have demonstrated, such is not the case and we hold Devine was a permissive user of the Corvair and, as such, was an insured under respondent’s policy issued to Frank Dreier Pontiac-Cadillac.

The judgment is reversed and the case remanded with directions that judgment be entered in favor of appellant Dorothy Case and against respondent Universal Underwriters Insurance Company.

All concur.