author: STEWART, Presiding Judge.

text:
    PINE LAWN BANK AND TRUST CO., a Missouri Banking Corp. and Lillian Kelley, Plaintiffs-Appellants, v. Milton J. SCHNEBELEN, Trustee under Deed of Trust, Julius Jensen, III, as Nominee of the Trustees of Diversified Mortgage Investors, and Bernie O. Snoddy, Trustee of Diversified Mortgage Investors, Defendants-Respondents.
    No. 38991.
    Missouri Court of Appeals, Eastern District.
    Jan. 30, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 16, 1979.
    Application to Transfer Denied May 17, 1979.

      W. W. Sleater, Clayton, for plaintiffs-appellants.
    Jerome M. Rubenstein, Robert G. Brady, St. Louis, for defendants-respondents.
   STEWART, Presiding Judge.

This is an appeal by plaintiff, Ladue-In-nerbelt Bank & Trust Company, formerly Pine Lawn Bank & Trust Company (Bank) from a judgment upon motion for summary judgment filed by defendant, Diversifiéd Mortgage Investors (DMI).

We affirm.

Bank in this action seeks to have a deed of trust which it holds on Bonneville Plaza Shopping Center declared to be superior to a deed of trust held by DMI.

Facts conceded by both parties are that DMI made a loan of $1,300,000 to JMC Investments, Inc. (JMC), the owner of Bonneville Plaza Shopping Center (Bonneville) in Bonne Terre, Missouri. A note for the amount of the loan and a deed of trust as security for the note were executed by JMC on May 29, 1973. JMC also made an assignment of existing and future leases and rental contracts conditioned upon breach of its contractual obligations. Upon breach DMI was authorized to exercise all rights of lessor; to collect the rents and apply them to the payment of taxes, insurance and the note. The deed of trust was recorded at 10:54 AM on June 6, 1973.

JMC borrowed $300,000 from Bank as evidenced by a note and deed of trust dated May 30,1973. The deed of trust in favor of Bank was recorded at 10:57 AM on June 6, 1973.

Before we can delineate the remaining facts we must first determine the basis for our factual determination. Bank filed a petition seeking various kinds of relief. DMI filed a motion for summary judgment with affidavits and supporting documents. Bank filed an “Affidavit in Opposition to Motion for Summary Judgment.” DMI did not file an answer to Bank’s petition before filing the motion for summary judgment and affidavits. Bank contends that under the circumstances we must consider the facts alleged in the petition as true. In support of its contention Bank cites Reisel v. Winsor, 140 Mo.App. 612, 120 S.W. 1186 (1909). The rule espoused by Bank is applicable, according to Reisel, when the case is before the appellate court “solely upon the petition.”

In the instant case we are governed by Rule 74.04(e) which, in part, states: “When a motion for summary judgment is made ánd supported as provided in this Rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this Rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”

Although a party may not rely solely upon the allegations of his pleadings, those allegations not controverted by the affidavits and other supporting documents of the movant may be considered as admitted by the moving party. Hurwitz v. Kohm, 516 S.W.2d 33 (Mo.App.1974).

With these principles in mind we review the additional facts as presented to the trial court. Many of the facts contained in the briefs of the parties, including random pages from a deposition contained in Bank’s brief, are dehors the record and will not be considered. Holt v. Rabun, 519 S.W.2d 561 (Mo.App.1975).

We glean from the uncontroverted allegations of the petition that in March of 1974 JMC was in default of its obligation under Bank’s deed of trust and that Bank advertised foreclosure of its deed of trust. JMC agreed to correct all its deficiencies in order to induce Bank to forestall foreclosure. Upon inquiry Bank was advised by DMI that JMC was current on DMI’s deed of trust, “Taking this into consideration the owner [JMC] did correct all other breaches of the Plaintiff Bank’s deed of trust and having been so told by DMI that there was no breach of the DMI deed of trust, Plaintiff Bank did cancel the advertising of foreclosure of its deed.”

On March 31, 1974 the principal owed on the note secured by deed of trust held by DMI was $1,200,000 and the interest owed was $88,199.97.

On March 18, 1974 attorney for DMI wrote to the tenants of Bonneville advising that JMC’s note was in default and that future rent payments were to be made to the attorney for DMI.

On March 27, 1974 DMI advised the tenants to make rental checks payable to DMI and send them to Don Shrum and Associates, Box 191, Bonne Terre, Missouri. Upon receipt of these letters the tenants of Bonneville refused to pay rents to Bank.

On May 6,1974 DMI wrote to the tenants of Bonneville advising them to send these rental checks made payable to DMI to Bank, attention Douglas W. Dodds, President.

On October 25, 1974 Bank foreclosed under its deed of trust and bought in the property at the foreclosure sale for the face amount of its note.

On March 4, 1975 DMI through its attorney notified the tenants of Bonneville that the note secured by deed of trust held by it was again in default and advised them to send all rent payments to DMI in care of its attorney.

Foreclosure proceedings were commenced thereafter. Bank unsuccessfully sought to enjoin the foreclosure. See Kelley v. Sehnebelen, 545 S.W.2d 332 (Mo.App.1976). After the termination of the injunction proceedings DMI again advertised the foreclosure for August 18, 1975. Prior to the date of sale the principal and accrued interest was $1,464,499. DMI offered to discharge the indebtedness and thus release the lien of the deed of trust upon payment by Bank of $1,000,000. The payment was not made and DMI foreclosed under its deed of trust.

Before summary judgment may be granted, it must appear from the pleadings, depositions and admissions on file, together with affidavits and other proof that there is no genuine issue of fact and that judgment should be entered as a matter of law. Rule 74.04(c), (h). Allen v. St. Lukes Hospital of Kansas City, 532 S.W.2d 505 (Mo.App.1975) cert. denied, 429 U.S. 804, 97 S.Ct. 37, 50 L.Ed.2d 65.

Bank urges that there are genuine issues of material facts to be resolved. As we have detailed the facts above we find no such factual issues. As we now view the facts the only issue of fact urged by Bank is the ownership of Bonneville in DMI. Bank’s affidavit denies that DMI is the owner of Bonneville “because the foreclosure is a nullity.” The statement of Bank is not a statement of fact but a conclusion. The question to be resolved by the court in this case concerns the priority of the two deeds of trust. If, in fact, Bank’s deed of trust had priority the effect of the foreclosure would be a nullity and whether such priority exists is a question of law under the facts. The fact that foreclosure by DMI has taken place does not moot the issue to be determined here.

As stated above the facts have been determined by considering those facts alleged in the petition that are not controverted by DMI’s affidavits as true, by taking the facts stated in DMI’s affidavits and admissible exhibits as true where they are not specifically denied by the affidavit of Bank.

The paramount issue for our determination is whether, under the facts as we have delineated them, the lien of the deed of trust held by DMI was subordinated to that of Bank.

There is no question but that DMFs deed of trust was superior to that of Bank at the time the deeds of trust were executed and recorded.

Basically Bank contends that DMI by its conduct in advising Bank that payments on DMI’s deed of trust were current, “waived the priority of its lien and is estopped from asserting such priority; DMI should not be permitted to gain by its wrongful acts.”

Bank places its primary reliance on Trout’s Investments, Inc. v. Davis, 482 S.W.2d 510 (Mo.App.1972). The case is readily distinguishable. In Trout’s defendant Davis purchased a home and obtained a loan from National Bank of Booneville for $27,000 secured by a deed of trust on the property. Davis was given $15,000 of the proceeds of the loan as part of the purchase price. The balance of the loan was placed in a “construction account” to be used for the payment of labor and materials in the remodeling of the home. Among other restrictions, withdrawals from this account could be made only upon the signature of Davis and an officer of National Bank. Davis contracted with plaintiffs, for the furnishing of labor and materials for the remodeling. Before any of the plaintiffs furnished labor or material they inquired of the bank and were assured that the money was available and they would be paid. Plaintiffs were not fully paid. In holding that the plaintiffs’ mechanics liens held priority over the deed of trust the court at page 517 stated the law to be that:

“Under the doctrine of waiver a mortgagee by reason of having induced the furnishing of labor and material may be precluded from asserting the priority of the mortgage over a mechanic’s lien.”

The elements of waiver and estoppel were present in the case because, as stressed by the court, the Bank had full knowledge of the project, controlled the funds, knew that unpaid bills would be lien-able, assured the plaintiffs that they would be paid. Bank thus induced plaintiffs to furnish the labor and materials, that enhanced the Bank’s security to plaintiff’s damage.

In the case before us in neither Bank’s petition nor in its affidavit do they claim that DMI was aware of the fact that Bank had commenced foreclosure proceedings and was relying upon the information it was seeking from DMI as the basis for forestalling the foreclosure at the time. The numerous other cases cited by Bank are to the same effect. In each case the party es-topped knew what action the other party was contemplating and that the party was relying upon the information as the basis of its action.

As we read Bank’s contention it does not claim that the misrepresentation as to the status of the note in itself resulted in injury and damage to Bank. It contends “Misrepresentations of DMI in March of 1974 relied upon by plaintiff Bank, coupled with letters by DMI to the tenants, followed by refusal of DMI to account for their demands under the DMI deed of trust, materially changed the Bank’s position to its damage, thereby entitling plaintiffs to the relief they seek.”

DMI was authorized by the deed of trust with JMC to collect the rents upon default. This they undertook by way of their letters of March 18 and 27 of 1974. Bank gives us no reason to fault DMI in its effort to protect its interests by collecting the rents.

Bank sought no accounting in this action and may not complain of a failure on the part of DMI to account at this stage of the proceedings. See Kelley v. Schnebelen, 545 S.W.2d 332 (Mo.App.1976).

Bank does not undertake to demonstrate how it was damaged solely by reason of the postponement of foreclosure of its deed of trust. The misrepresentation did not result in Bank increasing its loan to JMC. The obligation of Bank to DMI was not increased after Bank became the owner of the property by reason of foreclosure of its deed of trust. In fact DMI offered to forgive the amount of the accrued interest of $264,499 and $200,000 of principal upon condition that Bank pay the remaining principal balance of JMC’s note to DMI before the date set for foreclosure of the DMI deed of trust.

The pleading affidavits and documents that are properly before the court reveal no basis for recovery by Bank. The trial court did not err in granting summary judgment for DMI.

Bank further contends that the court erred in failing to grant it leave to file an amended petition or in failing to consider the amended petition in ruling the motion for summary judgment because it had a right to file an amended petition as a matter of course in accordance with Rule 55.-33(a), in as much as no responsive pleading was filed by DMI. It contends that a motion for summary judgment is not a responsive pleading. In view of the state of the record we do not reach the latter issue.

The transcript shows that the trial court ruled upon the motion for summary judgment on November 5, 1976. The transcript also contains the following entry: “And thereafter to-wit: On the 8th day of November, 1976, an Amended Petition was filed, ...”

Bank contends that the amended petition was sent to the trial judge along with its memorandum in opposition to DMI’s motion for summary judgment about June 10,1976. DMI filed a reply memorandum that makes reference to a proposed amended petition. The certificate of service states that a copy of the memorandum was mailed to Bank’s attorney on June 18, 1976.

Central to consideration of this issue is Rule 43.01(g) and (h):

“(g) Filing — When Required. All papers after the petition required to be served upon a party and filed with the Court shall be filed either before service or within five days thereafter.
“(h) Filing with the Court — Defined. The filing of pleadings and other papers with the court as required by these rules shall be made by filing them'with the clerk of the court except that a judge may permit the papers to be filed with him, in which event he shall note thereon the filing date and forthwith transmit them to the office of the clerk.”

The reference to the amended petition in DMI’s memorandum is evidence that the amended petition was served upon DMI, it is no evidence of filing with the clerk of the trial court. We are confined to the record as it is presented to us. Davis v. Long, 521 S.W.2d 7 (Mo.App.1975). Bank was required to file its amended petition before service upon DMI or within five days after service on DMI. Rule 43.01(g). The record before us shows that the amended petition was not filed before or within five days after service upon DMI but two days after judgment had been entered against Bank. This case is distinguishable from those cases where amendments may be made after judgment to conform to the evidence under Rule 55.33(b). The attempt at amendment came too late.

We do not speculate in this case as to the consequence of Bank’s attempt to file the amended petition by sending it to the judge, rather than filing with the clerk as required by Rule 43.01(h).

We have nevertheless reviewed Bank’s proposed amended petition which is in three counts. The first count re-alleges the original petition in all respects. Count II is an action to clear title to the real estate that is the subject of Count I, the original petition. Count III is an action for damages based upon the factual allegations of the original petition.

The factual basis for the claims of Bank in Counts II and III are the same as those contained in Count I which remains unchanged by the proposed amendment. It follows that the legal consequences flowing from those facts would culminate in the result reached with respect to the original petition. Bank was not prejudiced by the court’s failure to consider the proposed amended petition.

The judgment of the trial is affirmed.

REINHARD and STEPHAN, JJ., concur.

      . Compare such cases as Byers v. Zuspann, 257 S.W.2d 384 (Mo.App.1953), Dawson v. Cross, 88 Mo.App. 292 (1901) and Ferguson v. Long, 341 Mo. 182, 107 S.W.2d 7 (1937).


source: Caselaw Access Project

author: CRIST, Judge.

license: Public Domain

text:
    HESS CONSTRUCTION CO., a Corporation, Plaintiff-Respondent, v. STATE TAX COMMISSION of Missouri, Defendant-Appellant.
    No. 39965.
    Missouri Court of Appeals, Eastern District, Division Four.
    Jan. 30, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 16, 1979.
    Application to Transfer Denied May 17, 1979.

      Thomas W. Wehrle, George W. Lang, II, Assoc. County Counselor, Karen Weinhaus, Clayton, for defendant-appellant.
    David R. Hess, Clayton, for plaintiff-respondent.
   CRIST, Judge.

State Tax Commission appeals order of the Circuit Court of the County of St. Louis reversing and remanding for rehearing the Commission’s decision regarding assessments on two adjacent parcels of real estate. We affirm.

The two improved parcels in issue are owned by Hess Construction Company, respondent and taxpayer herein. Hess challenges the 1976 assessed valuations of the properties. It took its initial appeal before the County Board of Equalization, which denied its application for reduction. On appeal to the State Tax Commission, a hearing was held at which Hess and the St. Louis County Department of Revenue presented expert appraisal evidence as to value and methods of valuation.

The determinative issue is whether the decision of the Commission was supported by competent and substantial evidence upon the whole record. Mo.Const., Art. 5, § 22 (1945); § 536.140, subsection 2(3), RSMo. 1969; Rule 100.07(b). The expert witnesses utilized several methods in appraising the value of the properties.

The Commission, in its order, determined in each case that an assessment based upon the “gross possible income” from the rental properties was the most accurate measure of the fair market value or “true value in money” of the parcels. The Commission then viewed the evidence to determine the rental value of the office space within the respective buildings. Our inquiry is whether the evidence relied upon by the Commission was competent and substantial. If it was not, the decisions must bé reversed.

The primary point raised by Hess is that the conclusion of the Commission, as to one of the parcels “that for the rents involved all that was provided was a shell and that all interior construction was done at the expense of the [tenants]”, and as to the other, that “the rent for the first floor is that paid only for a shell since the [tenant] constructed his own interior and thus owns those improvements and does not pay rent on them”, was based upon hearsay evidence. Hess cites the Commission’s order to demonstrate that this hearsay evidence was expressly relied upon to determine that the actual rent received by Hess for each building was in part for a “shell” and thus was not a fair market rental. It thus resorted to the County assessor’s testimony of “comparable rents” as the only evidence of the true “economic rent”.

The record indicates that the source of the Commission’s information as to the extent of the first floor property on which rent was actually paid was the testimony of the County’s expert witness, which in turn was based upon statements made to him by third parties. The hearsay testimony recounted specific facts describing unique characteristics of the properties involved and was offered to prove their truth. This is distinguishable from a situation in which an expert testifying as to value bases his opinion in part upon his investigation and inquiries concerning comparable sales. See State ex rel. State Highway Commission v. Jasper, 544 S.W.2d 554, 556 (Mo.banc 1976).

In a contested State administrative proceeding probative evidence received without objection “shall be considered by the agency along with the other evidence in the case.” Section 536.070(8), RSMo.1969. Recent Missouri decisions are in accord with the principle that evidence received without objection may be utilized to support the conclusions of an agency. State ex rel. Sansone v. Quinn, 426 S.W.2d 917, 920 (Mo.App.1968); Lemay Bank & Trust Co. v. Oakville Bank & Trust Co., 518 S.W.2d 128, 129 (Mo.App.1974). Cf. State ex rel. DeWeese v. Morris, 359 Mo. 194, 221 S.W.2d 206, 209 (1949).

As to the second parcel of real estate, however, Hess interposed specific objection to the introduction of the hearsay testimony of the tenant’s leasehold improvements:

“[County’s expert witness] Again I refer to the fact that the first floor tenant’s finish is a lease hold improvement. The tenant paid for all interior finish, approximately two hundred thousand dollars ($200,000.00), per Mr. Hess’ statement to me.
Mr. Hess: Again I want to, if I may, I am not trying to belabor the point but I’d like to object to the hearsay statements for the record.
[Commission]: Let the record note it, proceed please.
The witness: I will acknowledge that it is hearsay; of course, that is really all— [Commission]: That’s all right, thank you.”

We hold that the evidence before the Commission as to the leasehold improvements made by one of the tenants in each building was not competent. While Hess raised specific objection to the testimony only as to the second parcel, the hearsay nature of the testimony as to the first parcel was specifically elicited on direct inquiry by a Commission member.

The tenant who allegedly made the improvements in each building was the same. The source of the hearsay testimony as to each parcel may well have involved the same conversations. Under these circumstances, with the interrelated nature of the appeals, the competency of the evidence on the leasehold improvements in each building must be viewed consistently.

The remaining points raised either have no merit or need not now be decided. The issue in dispute was not the extent of the property to be assessed but rather its proper assessment.

The judgment of the Circuit Court reversing the decisions of the State Tax Commission and remanding for a rehearing is affirmed.

WEIER, C. J., and DOWD, P. J., concur.


author: REINHARD, Presiding Judge.

text:
    James Robert HOOPER, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 40229.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 30, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 16, 1979.
    Application to Transfer Denied May 17, 1979.

      James M. Asher, Clayton, for movant-ap-pellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Philip M. Koppe, Asst. Attys. Gen., Jefferson City, for respondent.
   REINHARD, Presiding Judge.

Movant appeals from an order of the circuit court denying his motion to vacate judgment and sentence pursuant to Rule 27.26. We affirm.

In 1974 movant pleaded guilty to charges of second degree murder and assault with intent to kill with malice. The court sentenced movant to terms of forty (40) and twenty (20) years respectively, the sentences to run concurrently. In 1975 he filed his first Rule 27.26 motion, which was denied. Movant appealed to this court, and we sustained the. trial court in Hooper v. State, 541 S.W.2d 773 (Mo.App.1976).

On December 19, 1977, movant filed pro se a “Motion for Leave to Proceed with Successive or Amended Motion 27.26.” The court considered this a second Rule 27.26 motion. The state filed a motion to dismiss. After reviewing the plea proceedings and the prior motion, the court sustained the motion to dismiss without an evidentiary hearing, but made findings of fact and conclusions of law.

Movant first alleges that the court erred in failing to appoint counsel to assist him in presenting this motion to the court, said failure to appoint counsel allegedly depriving him of his constitutional rights. The court’s failure to appoint counsel was not a denial of his constitutional rights. Cole v. State, 553 S.W.2d 877, 884-885 (Mo.App.1977). In Westmoreland v. State, Nos. 39338 & 39664, p. 5 (Mo.App.St.L., December 15, 1978), we said:

“We are fully aware of our Supreme Court’s recent decision in Fields v. State, 572 S.W.2d 477 (Mo. banc, 1978), which requires appointment of counsel to aid in the redrafting or amendment of a Rule 27.26 pro se motion filed by an indigent. But the effect of Fields is prospective..."

Movant’s motion was filed in 1977 and the Fields mandate does not help him. We do not believe that movant is prejudiced by the refusal to apply Fields retrospectively.

Movant next contends that the court erred and abused its discretion in determining that movant’s second motion raised no new facts which could not have been presented in his first 27.26 motion.

Rule 27.26(c) requires the inclusion of all grounds known to the prisoner; 27.26(d) prohibits the court from entertaining a successive motion when the grounds are new but could have been presented in an earlier motion. The burden is on the prisoner-movant to establish that any new grounds raised in a successive motion could not have been raised by him in a prior motion. Rule 27.26(d).

As a new ground allegedly requiring an evidentiary hearing, movant alleges that his examining physician was incompetent to make a mental examination. We note initially that the movant has failed to meet his burden of establishing that this issue could not have been raised in the previous motion. Furthermore, the record reveals that prior to movant’s plea, he requested that he be granted a psychiatric examination under § 552.020, RSMo. (Supp.1975), which examination was made by Richard K. Jacks at Fulton State Hospital. The report found that the movant suffered from no mental disease or defect. The court, upon receiving the report and finding that neither the state nor the movant contested the results, entered a finding that the defendant had the mental fitness to proceed. This procedure was clearly in accordance with § 552.-020. Moreover, we held in Tillman v. State, 570 S.W.2d 844, 846 (Mo.App.1978) that contentions regarding the sufficiency of the psychiatric examination should have been brought up at the plea proceeding. Also see Mikel v. State, 550 S.W.2d 863, 869 (Mo.App.1977).

Movant further contends that his allegations of the ineffective assistance of his appointed attorney in his first 27.26 motion raise new grounds.

A movant is not permitted to challenge the effective assistance of counsel at a first 27.26 motion by means of filing a second 27.26 motion. Williams v. State, 507 S.W.2d 664, 666 (Mo.App.1974). To be sure, Williams recognizes an exception to the general rule when the attorney at the first Rule 27.26 proceeding was grossly delinquent. The court established that “Situations can be readily conceived where the prisoner should not be foreclosed from relief under Rule 27.26(d), where he did not know of the defect in the original trial and where he was prevented from discovering the existence and significance of the defect due to ineffective assistance of counsel.” Id. However, we find, as the Williams court did, that the exception does not apply here.

A brief consideration of the specific allegations made by movant reveals a uniform lack of merit. While asserting that his appointed counsel failed to amend his first pro se motion, the movant does not allege in either his second motion or his brief on appeal what changes his attorney could have made to alter the result. Movant next •contends that his counsel failed to move for movant’s personal appearance when his personal testimony was necessary. The attorney argued for an evidentiary hearing, which was denied; the denial was affirmed on appeal. Since there was no evidentiary hearing, there was no opportunity for mov-ant to testify.

As his next allegation of inadequacy, movant charges that counsel failed to review the trial transcript and failed to investigate the claims raised in his first motion. The record refutes the allegation of counsel’s failure to read the plea transcript. Secondly, movant’s allegations fail to show in what way a further investigation would have aided him. There is a presumption of competency of counsel and a strong showing beyond mere conclusory allegations must be made before that presumption can be overcome. Anderson v. State, 487 S.W. 455, 461 (Mo.1972).

Movant’s final allegation is that he was never advised by trial counsel of his absolute right to be able to contest the findings of Fulton State Hospital. This contention relates to his original trial counsel and movant again makes no showing that it could not have been raised in his prior motion. Rule 27.26(d).

Moreover, movant’s contentions as to errors relating to the mental examination are strained at best. He requested the examination. The record indicates that he had no complaint with the results. At the plea proceeding, in the presence of the movant, his attorney stated:

“. . . the accused has no mental disease or defect . . . that the accused has the capacity to understand the proceedings against him and assist in his own defense, that he did appreciate the nature, quality and wrongfulness of his alleged conduct, and was capable of conforming his conduct to the requirements of the law, and that the accused does not require hospitalization pending further proceedings . . . ”

Movant had been granted a psychiatric examination by the court prior to the time of his pleas. The findings of that report were introduced into evidence at the request of the court at the time of his pleas. The report established that the movant was competent to stand trial. As we stated in Hooper v. State, 541 S.W.2d at 774, “Our reading of the plea proceedings convinces us that movant understood the charges against him, and voluntarily entered his pleas.” We find no evidence that movant’s condition warranted a second examination or a competency hearing.

Finally, the movant contends that. the court erred in construing his Motion for Leave to Proceed with Successive or Amended Motion 27.26 as a second 27.26 motion. The court had lost jurisdiction of the first 27.26 motion and could not permit an amendment of it. We find no error in the court’s determination that this was a second 27.26 motion.

Affirmed.

CLEMENS and GUNN, JJ., concur.


author: HOGAN, Judge.

text:
    STATE of Missouri ex rel. SPECIALTY FOAM PRODUCTS, INC., Relator, v. Honorable James H. KEET, Jr., Respondent.
    No. 10629.
    Missouri Court of Appeals, Southern District.
    Feb. 5, 1979.
    Motion to Vacate Opinion and Quash the Writ or for Rehearing or Transfer Denied March 28, 1979.
    Application to Transfer Denied May 17, 1979.

      William A. Wear, Jr., Wear & Wear, Springfield, for relator.
    Arch M. Skelton, Springfield, for respondent.
   HOGAN, Judge.

This is an original action in prohibition, commenced by the relator as defendant in an action pending in the Circuit Court of Greene County. The relator’s ground for seeking prohibition was that the procedure followed in commencing the action by attachment, or more accurately garnishment in aid of attachment, did not comport with the requirements of procedural due process as first articulated by the Supreme Court of the United States in Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), and subsequently developed in Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974) and North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975). The petitioner supplied docket entries, which we were willing to construe as orders sufficient 'to justify a journal entry, Sears v. Norman, 543 S.W.2d 300, 304[7] (Mo.App.1976), and our preliminary rule issued because it appeared that the writ effecting the prejudgment seizure had issued without prior or contemporaneous notice to the relator, and without the participation of any judicial officer.

The cause vividly illustrates the pitfalls and deficiencies of writ practice. The petition, twice “supplemented,” is drawn in most conclusory language; the return, though adequate, undertakes to go into the merits of the cause. This is true here, and in most of the applications we receive for writs of prohibition even though it has been settled for years that in prohibition, the petition must unequivocally and explicitly set forth every fact requisite to the issuance of the writ, State ex rel. Brncic v. Huck, 296 Mo. 374, 381, 246 S.W. 303, 305[1] (banc 1922), conclusory allegations must be disregarded, State ex rel. Fechtling v. Rose, 239 Mo.App. 178, 183, 189 S.W.2d 425, 428[2] (1945), and the return may not broaden the issues set up in the petition nor bring additional issues into the case. State ex rel. Brncic v. Huck, supra, 296 Mo. at 381, 246 S.W.2d at 305. Moreover, our factual inquiry is limited in prohibition. The voluminous and expansive “suggestions” usually received in connection with writs are but a species of brief, and record facts cannot be supplied in a brief. In re Jackson’s Will, 294 S.W.2d 953[1] (Mo.App.1956). Of course, the parties may consent to submit the cause as on an agreed statement of facts; if so, we are required to confine our consideration to undisputed facts and admissions against interest in the pleadings and disregard conflicting allegations. Issues of fact may be made up and heard before a master or commissioner appointed by the court, but save in habeas corpus or in cases of direct contempt, this court does not try causes on oral evidence as if it were a nisi prius court. State ex rel. Burtrum v. Smith, 357 Mo. 134, 144, 206 S.W.2d 558, 564[10] (banc 1947). Desirable as it may seem to some attorneys to try a case piecemeal in the court of appeals, such is not the function of the writ of prohibition.

It is not our purpose to lecture able counsel; it is our purpose to point out, once again, the inadequacy of the writ as compared to a petitioner’s usual remedy by appeal. Here, the relator’s remedy by appeal under former Rule 85.40 was manifestly inadequate if its funds had been unlawfully garnished on attachment, even though, in our opinion, its objection to the attachment was not subject to waiver by pleading over and going to trial, as it did. Greenwood v. Schnake, 396 S.W.2d 723, 725—726 (Mo.1965). For this reason, and because, as indicated, the petition strongly suggested a prejudgment seizure of relator’s funds which did not satisfy the requirements of procedural due process, our preliminary writ issued. However, the petition was answered by traverse and in avoidance and the reply was in effect a general denial. Therefore, under the law as laid down in State ex rel. Burtrum v. Smith, supra, 357 Mo. at 144, 206 S.W.2d at 564, few, if any, uncontroverted facts remain in the record for submission; certainly the uncontroverted factual allegations are insufficient to permit consideration of any issue of constitutional dimension, and if the parties intended to submit only issues of law, as was the case in State ex rel. Dunphy v. Eversole, 339 S.W.2d 506, 507[1] (Mo.App.1960), they have not succeeded. The reply traverses every allegation of the return, in effect denying the veracity of the record entries supplied by and pleaded in the return. We can look only to the sheriff’s return to the writ of attachment to determine whether there is an absence of jurisdiction or an act wholly in excess of the trial court’s jurisdiction. See State ex rel. Bowling Green Trust Co. v. Barnett, 245 Mo. 99, 115, 149 S.W. 311, 315[4] (banc 1912).

The writ of attachment issued in the form prescribed by our Supreme Court. The return to the writ reads literally as follows:

“I hereby certify that I have executed the within writ in the County of Greene, State of Missouri, on the 22d day of November, 1976, by delivering a true copy as furnished by the Court to Asst. Vice President James R. Chalfant at the Commerce Bank and by taking possession of a Cashiers Check # 698893 payable to the ‘Clerk of Circuit Court, Greene County’ in the amount of $4,500 (Four Thousand Five Hundred Dollars and No cents.) The Cashiers Check in the above amount forewarded [sic] to the Circuit Clerk together with this return.”

Rule 90.01 provides that garnishment may be had in aid of execution or attachment; indeed, the printed form presently in use for commencement of an action by attachment contains an express command . .to summon as garnishees all persons in whose hands or possession any personal property, rights, credits, evidences of debt, effects or money of said defendant may be . ”, And, of course, Rule 90.06 provides that any garnishee may discharge himself by paying or delivering the amount claimed and held by him to the sheriff. Hilke v. Bank of Washington, 251 S.W .2d 963, 965 (Mo.App.1952). Here, obviously, the garnishee bank sought to discharge itself by paying over the amount sued for, and it was entitled to do so.

What we are concerned with in this case is the sufficiency of service to confer jurisdiction on the trial court. As this court observed in Fulkerson v. Laird, 421 S.W.2d 523, 526 (Mo.App.1967), garnishment is a purely statutory proceeding in derogation of the common law and strict compliance with all requirements imposed by our Civil Rules is essential to confer and support jurisdiction over the res, which can be conferred neither by waiver nor consent. Fulkerson v. Laird, supra, 421 S.W.2d at 526; Blackburn Motor Co. v. Benjamin Motor Co., 340 S.W.2d 155, 159—160[3] (Mo.App.1960); Federal Truck Co. of St. Louis v. Mayer, 216 Mo.App. 443, 450, 270 S.W. 407, 409[1] (1925). Moreover, no act of the garnishee can operate to deprive the defendant of his right to insist upon strict compliance with the rules; if the garnishee is not properly served, nothing is attached in his hands. Gates v. Tusten, 89 Mo. 13, 21-22, 14 S.W. 827, 829 (1886); Blackburn Motor Co. v. Benjamin Motor Co., supra, 340 S.W.2d at 159—160[3]; Trinidad Asphalt Mfg. Co. v. Standard Oil Co., 214 Mo.App. 115, 123, 258 S.W. 64, 66-67[5] (1924).

The return shows on its face that it was served on a banking corporation. The governing civil rule, Rule 90.04, requires that: (our emphasis)

“[Njotice of garnishment ... be served on a corporation, in writing, by delivering such notice, ... to the president, secretary, treasurer, cashier, or other chief or managing officer of such corporation . . .

Can it be said that service upon an assistant vice-president of a bank may be taken as service within the meaning of Rule 90.-04? We think not. In Smith v. Bennett, 472 S.W.2d 623, 627[1] (Mo.App.1971), this court held the quoted part of Rule 90.04 contemplated a duly constituted executive officer whose authority and powers are such that he is regularly in control of the operations and business of the corporation. Assuming arguendo that there are orders of vice-presidents who might fall in that category, as much cannot be said of assistant vice-presidents. As a title-modifying adjective, it has consistently been held that the word “assistant” carries the idea of subordination to another; implies duties that ordinarily are circumscribed and are performed in connection with and under the direction of the superior official. See: State ex rel. Dunn v. Ayers, 112 Mont. 120, 113 P.2d 785, 788[3] (1941); 7 C.J.S. Assistant p. 15 (1937). A case colorably in point is Florida First Nat. Bank v. Dent, 350 So.2d 481, 483[2, 3] (Fla.App.1977). In that case, the Florida court had to consider whether a lease executed by the plaintiff bank was valid under a statute requiring the signature of the bank’s “ ‘president or any vice-president or chief executive officer.’ ” A majority of the court held that an assistant vice-president was not a vice-president whose authority to execute a lease could be presumed. Rule 90.04 does not enumerate vice-presidents as officers upon whom service of garnishment may be had; we conclude that service upon Mr. Chalfant, as an assistant vice-president, cannot be taken as service upon a duly constituted executive officer whose authority and powers are such that he is regularly in control of the operations and business of the bank. In this respect, the return is clearly insufficient to confer jurisdiction of the res upon the trial court.

There is an additional, necessary requirement which was not complied with here. Whether the relator’s bank account was attached (by garnishment) under Rule 85.21(d), as inaccessible “goods chattels, money or [other] evidences of debt,” or under Rule 85.21(e), as “credits,” a declaration or announcement of sequestration was required. Howell v. Sherwood, 213 Mo. 565, 576, 112 S.W. 50, 52-53[1] (1908); Fulkerson v. Laird, supra, 421 S.W .2d at 526. The return does not even recite an “attachment in [the garnishee’s] hands,” which would more nearly, but not quite, reflect compliance. See Hopkins v. Henson, 205 Mo.App. 384, 387-389, 224 S.W. 119-120[1] (1920). Manifestly, for the two reasons stated, the Circuit Court of Greene County never obtained jurisdiction over the property — here a cashier’s check — which was garnished, taken in possession and deposited in the registry of the court.

Such ruling does not dispose of the cause. In prohibition, we are authorized to look beyond the record to determine whether or not the cause is moot. State ex rel. Donnell v. Searcy, 347 Mo. 1052, 1059, 152 S.W.2d 8, 10[2] (banc 1941); State ex rel. Thompson v. Simmons, 499 S.W.2d 819, 820[1] (Mo.App.1973). To our considerable chagrin we find that the cause out of which this action arose has been tried upon the merits, an appeal has been taken, and the record on appeal, as yet undoeketed, has been lodged here. We have looked to this record, not to determine any facts pertaining to the merits of the action, but to determine whether or not our ruling would be an empty formality. If the relief sought would be ineffectual because there is no longer any actual controversy, then of course, our preliminary writ should be quashed. State ex rel. Donnell v. Searcy, supra, 347 Mo. at 1059, 152 S.W.2d at 10[4]; State ex rel. Myers v. Shinnick, 19 S.W .2d 676, 678-679[4] (Mo.1929).

We find that the cause has been partially tried or disposed of on its merits, but we find no disregard of our preliminary writ. The order which issued was far too broad — “to refrain from further action in the premises” — because it included matters obviously within the trial court’s jurisdiction. See State ex rel. Lane v. Pankey, 359 Mo. 118, 122, 221 S.W.2d 195, 197[7] (banc 1949). The respondent, to whom the cause had come upon disqualification of the original trial judge, quite properly regarded our preliminary writ as running only to the attachment. The underlying action — an action to recover the purchase price of a used truck — was promptly and expeditiously tried on the merits. It appears from record proceedings preliminary to the trial that the relator (defendant) bought a used truck and gave its check in payment; the truck did not operate satisfactorily, and relator stopped payment upon its check. Plaintiffs — one Howard Worthey and others— thereupon commenced their action for the purchase price by garnishment in aid of attachment.

Prior to trial, relator filed a counterclaim. The trial court generally found the issues tendered against the plaintiffs and in favor of relator, dissolved the attachment and entered judgment for the relator upon relator’s counterclaim. However, with respect to the garnished funds — the $4,500 cashier’s check — the trial court entered the following order:

“. . .In regard to the attachment being dissolved the Circuit Clerk is directed to pay the funds which were attached to Commerce Bank for the specific purpose of releasing the lien listed on the title to the 1969 Ford truck which was the subject matter of this lawsuit. In the event there are funds left over after paying off the indebtedness to release the lien as aforementioned, the Circuit Clerk is directed to pay such left over sum to [relator].” (our emphasis).

We understand, through direct inquiry, that the appeal in Cause No. 82676-3 in the Circuit Court of Greene County — the cause out of which this action arose — has been taken as a supersedeas. Such is the correct view of the record, at least, because part of the relator’s counterclaim has not been passed upon, the judgment appealed from is appealable only because it was so designated by the trial court, and since execution cannot be had, there is now nothing to be superseded by a supersedeas bond. See: State ex rel. Patton v. Gates, 143 Mo. 63, 68-69, 44 S.W. 739, 741 (1898); Seiter v. Tinsley, 503 S.W.2d 38, 39 (Mo.App.1973).

With deference to the trial judge, for whom we have only the highest respect, the quoted part of the judgment cannot stand. In the first place, it does not appear that the Commerce Bank ever sought to intervene either as garnishee or lienor. In fact, the bank as garnishee prudently exonerated itself by paying the entire amount sued for into court at once. Rule 90.07; Aach v. Pippart, 261 S.W. 929, 930[2] (Mo.App.1924). Such payment could not, however, affect the rights of third parties, which might well have attached prior to the time the bank’s lien attached, if it did. Gates v. Tusten, supra, 89 Mo. at 21-22, 14 S.W. at 829.

Such considerations are not essential, or even necessary, we suppose, to our decision, even though the garnishment of a bank account without prior or contemporaneous notice to the depositor and without participation of any judicial officer has concerned this court. Our ruling and order are based on the premise that the trial court, in ordering the attached res delivered to the garnishee, has clearly exceeded its jurisdiction.

Rule 85.38, as it read when this case was tried, provided that:

“[W]hen the defendant is summoned to appear, or shall appear voluntarily, . the like proceedings shall be had between him and the plaintiff as in ordinary actions commenced by summons, and a general judgment [emphasis ours] may be rendered for or against the defendant.”

Except for immaterial omitted provisions now questionable in light of Shaffer v. Heitner, supra, n. 1, this rule encoded the law just as it had existed since 1855. Defendant’s general appearance, sometimes involuntary or inadvertent, conferred jurisdiction upon the court to render an in per-sonam judgment, but if the attachment was wrongful or ineffective, such appearance conferred no jurisdiction to render a special judgment against the attached res. State ex rel. and to Use of Fenn v. Conran, 212 S.W. 869, 870[1] (Mo.1919); Lubrication Engineers, Inc. v. Parkinson, 341 S.W.2d 876, 877-878[4, 5] and authorities cited n. 6 (Mo.App.1961). In the case at hand, the attachment by garnishment was wholly ineffective. The relator did undoubtedly appear, but by no stretch of the judicial imagination can it be said that its appearance amounted to a waiver of its objections to the garnishment. So, the court was authorized to enter a general judgment for or against the defendant, but not a special judgment against the res attached, and it follows that the order directing pro tanto payment of the cashier’s check to the Commerce Bank was void, subject to prohibition, and the cause is not moot.

The writ of prohibition may run to undo that which has been done when the court is acting in excess of its jurisdiction and something further remains to be done pursuant thereto. State ex rel. Siegel v. Strother, 365 Mo. 861, 289 S.W.2d 73, 79[11] (banc 1956); State ex rel. Ellis v. Creech, 364 Mo. 92, 96-97,259 S.W.2d 372, 375[5,6] (banc 1953); State ex rel. Home Owners’ Loan Corp. v. Bird, 232 Mo.App. 652, 654-655, 110 S.W.2d 386, 388[5] (1937). The attachment has been dissolved, and presumably the plaintiffs and their sureties have been discharged from liability on their bond. Inasmuch as the trial court found for the relator, we suppose the entry of such judgment was proper and necessary to a final disposition on the merits. Nevertheless, because the judgment is not final and therefore not subject to execution, the res remains in the hands of the Circuit Clerk, or “in the registry of the court.”

Having determined that the garnishment in aid of attachment was insufficient to confer jurisdiction of the res upon the Circuit Court of Greene County, and having further ascertained that the order purporting to disburse the funds garnished is beyond the court’s jurisdiction, and having determined that the funds garnished are in control of the nisi prius court, it is therefore ordered in aid of and to effect the purpose of an absolute writ, all in conformity with Rule 97.05, that: (1) the Circuit Court of Greene County be, and is hereby, absolutely prohibited from enforcement of so much of its judgment of October 6,1977, as purports to order payment of the garnished funds to the Commerce Bank of Springfield, Missouri; (2) the Circuit Court of Greene County, upon receipt of the mandate of this court, shall forthwith pay the sum garnished, or any moneys representing the sum garnished from relator’s bank account directly to the relator, all without the assessment of any fees or costs against the relator; and (3) the costs of this action shall be taxed against the relator, but shall not be levied out of the sum garnished.

BILLINGS, P. J., and MAUS, J., concur.

      . The prejudgment seizure with which we are concerned is a “security” seizure rather than'a “jurisdictional” seizure of the sort considered and discussed in Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977). The relator is a domestic corporation and none of the arcane questions raised by Shaffer appear in this case.


author: GUNN, Judge.

text:
    STATE of Missouri, Respondent, v. Larry R. SIGH, Appellant.
    No. 40197.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 6, 1979.
    James Porter, Asst. Public Defender, 22nd Judicial Circuit, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Steven Scott Clark, Asst. Atty. Gen., Jefferson City, for respondent.
   GUNN, Judge.

Defendant was convicted of second degree burglary. His appeal raises three points of alleged trial court error: (1) in allowing the testimony of a nine-year-old boy who was a witness to the burglary; (2) in allowing certain state rebuttal testimony claimed to be cumulative in effect; (3) in denying defendant’s request for pre-sen-tence investigation. We find no error and affirm.

The apartment of Shirley Wynn was burglarized while she was away on an errand. According to Ms. Wynn’s eight-year-old son Timothy (he was nine at the time of the trial), two men appeared at the apartment door, threatened to knock it down if they were not admitted and entered the premises. Timothy, who had responded to the two men’s threats of forcible entry, and his younger brother and sister were put in the bathroom by the two men who closed the door behind them. Timothy later identified the defendant as one of the two men who had gained access to the apartment by threat. Defendant’s defense was alibi that he was elsewhere.

At trial, Timothy related the facts of defendant’s entry into his mother’s apartment. Ms. Wynn testified that upon her return to the apartment she found her three children crying and items of value gone from the apartment. Defendant charges the trial court with abuse of discretion in allowing Timothy’s testimony. He challenges Timothy’s competency, because he could not remember his birthdate, full names of his brother and sister, did not know the seasons of the year and had received low marks at school. Pursuant to § 491.060(2), RSMo Supp.1977, a child under ten years of age is presumptively incompetent to testify unless he appears to have: (1) present understanding of, or intelligence to understand upon instruction, the obligation to speak the truth; (2) mental capacity at the time of the occurrence at issue to truly observe and register such occurrences; (3) sufficient mentality to render an intelligent recollection of the observations made; and (4) capacity to translate into words the memory of such observations. State v. Patterson, 569 S.W.2d 266 (Mo.App.1978); State v. Lawrence, 566 S.W.2d 243 (Mo.App.1978); State v. Ball, 529 S.W.2d 901 (Mo.App.1975). The determination of a child’s competency to testify is vested within the considerable discretion of the trial court. State v. Young, 477 S.W.2d 114 (Mo.1972); State v. Lawrence, supra; State v. Bady, 561 S.W.2d 748 (Mo.App.1978); State v. Ball, supra. To qualify as a witness a child need not exhibit absolute mental clarity and be totally unambiguous and consistent. State v. Williams, 545 S.W.2d 680 (Mo.App.1976); State v. Ball, supra. Minor deficiencies in testimony need not cause the disqualification of a child from testifying but merely affect his or her credibility.. A child should be disqualified only if there are such deficiencies or inconsistencies in the testimony as to render it impossible or devoid of any. probative force. State v. Lawrence, supra; State v. Bady, supra; State v. Ball, supra. In this case the child’s testimony was not so deficient as to disqualify him. It was detailed and consistent and he possessed the requisite elements to remove the restraining ligatures of § 491.060(2), RSMo Supp.1977 as to competency. Any deficiencies concerned only collateral matters going to the credibility of his testimony to be weighed by the jury. There was no abuse of the trial court’s discretion in permitting Timothy to testify and allowing his testimony to stand.

Defendant’s second point regarding the state’s rebuttal testimony is palpably without merit. During the defendant’s case, he sought to establish his alibi that he had been at a movie at the time of the burglary; that he had neither given the names of his alibi witnesses to the police nor had the names been sought. On rebuttal, the arresting officer testified as to whether he had asked for the names of the alibi witnesses:

Q. Did you ask him the names of the witnesses?
A. [police officer] I attempted in a little bit, and made a statement that he did not wish to talk any more, and at that point, I stopped questioning him.
Q. Why is that?
A. Because when somebody makes that statement to a police officer that he does not want to make a statement, under the Miranda Rule, we’re not allowed to take a statement past that point.

Although defendant made no objection at trial to the rebuttal testimony he now claims that the statement was an improper comment on defendant’s refusal to testify and seeks reversal by reason of plain error under Rule 27.20(c). This precise issue was considered and rejected in State v. Harris, 547 S.W.2d 473 (Mo. banc 1977), and so, too, do we reject it. We also believe that the testimony was within the proper scope of rebuttal testimony as a refutation of the defendant’s testimony and allowable within the trial court’s considerable discretion. State v. Williams, 442 S.W.2d 61 (Mo. banc 1968); State v. Sallard, 563 S.W.2d 124 (Mo.App.1978); State v. Kerr, 548 S.W.2d 295 (Mo.App.1977).

Defendant’s final point is that the trial court abused its discretion in failing to grant his 1978 request for a pre-sentence investigation report; that he was thereby denied due process of law. Maggitt v. State, 572 S.W.2d 870 (Mo.App.1978), and cases cited therein neatly reject defendant’s contentions in this regard.

Judgment affirmed.

REINHARD, P. J., and CLEMENS, J., concur.

      . Section 557.026, RSMo Supp.1977, effective January 1, 1979, contains the current provisions for pre-sentence investigation which were not in effect at the time of the trial court’s action denying defendant’s request for a report.


author: WEIER, Judge.

text:
    W.B.M., a minor, by Y.S., his next friend, Respondent-Appellant, v. G.G.M., Appellant-Respondent.
    Nos. 39412, 39835.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 14, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 16, 1979.
    Application to Transfer Denied May 17, 1979.

      John R. Parres, Dulin, King, Parres, McDowell & McDowell, St. Louis, for respondent-appellant.
    William A. Boles, James P. Gamble, St. Louis, for appellant-respondent.
   WEIER, Judge.

Plaintiff, a minor by his next friend, sues the defendant alleging that he is the illegitimate son of the defendant and that he is dependent upon the defendant for his support, maintenance, education and medical necessities. He further alleges that the issue of paternity was decided by a judgment of the Juvenile Court of Marion County, Indiana, in an action brought by his mother and that such determination is entitled to full faith and credit by the courts of this state. He then prays that the court make a determination that he is the child of the defendant and is entitled to support and maintenance and for his attorney’s fee and for the cost of this suit. In Count II plaintiff seeks an award from the defendant of an amount payable periodically for his support and maintenance. The trial court made extensive findings of fact, conclusions of law and rendered judgment determining that defendant was the putative father of the plaintiff on the basis of the evidence submitted, the trial court noting that the Indiana court judgment was merely an additional evidentiary fact before the court which was not conclusive in arriving at judgment.

The court awarded plaintiff, based upon the financial evidence before it, $45 per week against the defendant for a contribution to plaintiff’s support.

On appeal, the defendant contends that the trial court erred in holding that the judgment of the juvenile court was not entitled to full faith and credit. His thesis is submitted upon the reasoning that if the entire judgment is entitled to full faith and credit, the last portion of the judgment would bar the present action by reason of equitable estoppel and laches if it were brought in Indiana and therefore would bar the instant support action in Missouri. We agree that the entire judgment is entitled to full faith and credit but do not agree that the terms of the judgment would in any way bar the present action for support.

An authenticated copy of the Indiana judgment dated January 13, 1969, was introduced in the evidence. It indicates that the natural mother and putative father both appeared in court in person and by their attorneys; that the issues were formed by an amended petition and an amended answer and that the parties in open court waived trial by jury and submitted the cause to the court on an oral stipulation of facts. It further recited that the court found that petitioner was not married; that the defendant there, who is the defendant in the cause now before us, was the father of the herein plaintiff born on September 19,1968, and ordered that the child would thereafter be known and identified under the name of the father and that the birth certificate be amended accordingly. The very last paragraph of the judgment stated:

“No judgment being rendered by the Court for pre-natal, post-natal and birth care, attorney fees or a support payment, the same having been waived by the petitioner.”

We do not read this to indicate any attempt on the part of the court to settle or in any way affect future support for the child. The only meaning that can be read into it logically is that, as of the time of this judgment, the petitioner, who is the mother of the instant plaintiff, waived a support payment at that time. It does not provide that future support for the child would be waived or could be disregarded. Indiana statutory law, under which this judgment was rendered, Ind.Code Ann. § 31-4-1-25 (Burns 1973) [3-646 (1968)], (1941 Ind.Aets, ch. 112, § 23, p. 301), provides that the existence and performance in whole or in part of any agreement entered into by the mother and father of the child shall not be a bar to any action for paternity and support unless adequate provision is made in the agreement for the support of the child and the father had complied with the terms of the agreement. No such provision had been made. To the contrary, the father has contributed nothing.

Under the United States Constitution, Art. IV, Sec. 1, we give full faith and credit to the judgments of sister states unless it can be shown that there was (1) lack of jurisdiction over the subject matter, (2) a failure to give due notice, or (3) fraud in the concoction of the judgment. O’Neill v. Winchester, 505 S.W.2d 135, 136[1] (Mo.App.1974). Such a judgment can be sued upon in this state and is here entitled to full faith and credit under the Federal Constitution and under our Statute § 490.130. Shearer v. Parker, 364 Mo. 723, 267 S.W.2d 18, 25[6] (1954). It is not necessary that the judgment be registered under the terms and procedures outlined in § 511.760 RSMo. 1969 (Uniform Enforcement of Foreign Judgments Law) (Rule 74.79) in order to give the foreign judgment validity in this state because the Uniform Act was merely intended to afford judgment creditors an alternative and summary method of enforcing judgments of sister states which were entitled to full faith and credit. Corning Truck & Radiator Service v. Inc., 542 S.W.2d 520, 525[4] (Mo.App.1976). Section 511.760, supra, subsection 16, recognizes the alternative or common-law method of bringing an action to enforce an out-of-state judgment. The proof of a valid judgment holding that defendant was the father of plaintiff was conclusive proof of this fact and required no further evidence on that issue.

Although Missouri law was at one time to the contrary, our statutory provisions relating to the obligations and rights of parents (§§ 452.150, 452.160 RSMo.1969, § 559.353, Laws 1965, p. 669, § 1 (§ 559.351); amended Law 1977, p. 397) have been held to afford illegitimate children a right equal with that of legitimate children to require support by their parents. R_ v. R_, 431 S.W.2d 152, 154[2] (Mo.1968); see also, § 568.040 Laws 1977, eff. January 1, 1979. Here defendant is a resident of Missouri and subject to its jurisdiction. The law of Missouri governs his liability and the court here had jurisdiction to impose upon him the duty to support his minor son even though the child may not be subject to the jurisdiction of Missouri courts. Berkley v. Berkley, 246 S.W.2d 804 (Mo.1952). The evidence and the law both support the judgment of the trial court and as to that portion of the judgment determining that defendant was the father of plaintiff and requiring support payments, the judgment is affirmed.

The plaintiff in this case also appealed from the judgment of the trial court which held that plaintiff was not entitled to an award of attorney’s fees in pursuing his cause of action in this state. The court below considered the question of attorney’s fees. The conclusions of law contain this statement: “The Court finds no authority for the allowance of such fees in this present type of case. However, if such a request is found to be proper by a superior Court, this Court concludes that $4,000.00 would be a reasonable attorney’s fees.” At the time this case was decided (May 2, 1977), it would appear that there was no clear authority for such an award. Since that time, however, this court in the case of Stegemann v. Fauk, 571 S.W.2d 697, 701[8] (Mo.App.1978) determined that although there was no statutory authority in Missouri for the allowance of attorney’s fees in paternity suits an allowance could be made “under the auspice of the court’s power to exercise equitable jurisdiction to care and provide for the minor child.” Here the evidence disclosed that counsel for plaintiff had expended 108 hours in preparation and presentation of this case. Such services are necessary for the preservation and enforcement of the right of the child to its support. In such circumstances, we believe that the amount of $4,000 would be fair and reasonable. We therefore reverse the judgment of the trial court with respect to denying the allowance of attorney’s fees and order that defendant pay plaintiff said sum of $4,000 in addition to the amount heretofore awarded for the support of plaintiff together with the costs of this action.

GUNN, P. J., and KELLY, J., concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Jerome Alfred CRAFTON, Defendant-Appellant.
    No. 39073.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 14, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 13, 1979.
    Application to Transfer Denied May 17, 1979.

      Mary-Louise Moran, Asst. Public Defender, 22nd Judicial Circuit, St. Louis, for defendant-appellant.
    Gregory W. Schroeder, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   REINHARD, Presiding Judge.

Defendant appeals from a conviction of the sale of a Schedule I controlled substance, namely, marijuana, in violation of § 195.200(1), (5), RSMo 1969. The original information charged defendant with two counts for the sale of marijuana, and one count for the possession of marijuana. A jury found defendant guilty on both counts of sale, but acquitted him of the possession charge. Pursuant to the Second Offender Act, the trial court sentenced defendant to thirteen years on each count, the sentences to run concurrently.

On appeal, defendant’s brief attributes two errors to the trial court. He first cites as error the trial court’s refusal to substitute the term “controlled substance” for the word “drug” in its instructions to the jury. Secondly, he claims the trial court departed from its prescribed role as impartial administrator of justice by its trial conduct, to the prejudice of defendant, and thus committed reversible error.

All three counts contained in the information refer to events that transpired on three separate occasions. The sales were alleged to have taken place on March 2, 1976 and March 5, 1976; the possession on May 14, 1976. However, the activities giving rise to this appeal took place at trial.

At the instruction conference, several instructions were tendered by the defense and refused by the court. These instructions followed the approved form of MAI-CR 14.10 with the single deletion of the term “drug” and substitution of the phrase “controlled substance”. We address our initial efforts to this instruction issue.

The thrust of defendant’s argument is this: The form instructions of MAI — CR were intended to be modified so as to more precisely pertain to the facts of a particular case. Since the term “controlled substance” is a more accurate description of defendant’s wares, these instructions were modifiable to that extent, and refusal to so modify constituted reversible error. To this end, defendant’s brief adopts a lengthy and somewhat attenuated argument, based on semantics, in support of his proposition. Without weighing the appropriate definitions of “drug” or “controlled substance”, and the merits of using one term as opposed to another, we find defendant’s argument strained, at best.

The defense cites no instance, and we are aware of none, where the giving of the approved MAI-CR instruction resulted in prejudicial error. Indeed, in light of Rule 20.02(c) and (e), we should be most surprised to find such a ruling. Conversely, research disclosed numerous cases where either 1) Adherence to the approved instructions did not constitute error; State v. Dodson, 556 S.W.2d 938[34] (Mo.App.1977); State v. Blockton, 526 S.W.2d 9X5[9] (Mo.App.1975); State v. Yeokum, 516 S.W.2d 535[3] (Mo.App.1974); or, 2) Failure to so adhere did constitute error, but its prejudicial effect was to be judicially determined. State v. Grant, 560 S.W.2d 39[10] (Mo.App.1977); State v. Tettamble, 561 S.W.2d 414[4] (Mo.App.1977). Following the mandate of these cases, we hold that the use of those instruction forms, without modification, which have been approved for use by the Missouri Supreme Court, did not constitute error. Blockton, supra; Yeokum, supra.

Defendant next contends the trial court departed from its prescribed role as impartial administrator of justice, to the prejudice of defendant, by its conduct in: 1) Chastising the defense attorney during voir dire proceedings in front of prospective jurors; and, 2) Questioning only those witnesses called by the defense, allegedly demonstrating to the jury the trial court’s doubt as to the veracity of these witnesses.

The comments the defense attorney complains of occurred at the bench and supposedly out of the hearing of the jury. The defendant, however, avers that the court’s remarks were loud enough for the jury to hear. During voir dire examination of jurors, defense counsel posed a question to a juror, the court said the question was improper and asked the attorney to step to the bench. At the bench, among other comments, the court indicated further attempts to pursue that line of questioning would find defendant cited for contempt. The defense attorney then stated into the record his conception as to what had occurred. After further discussion at the bench, the following transpired:

The Court: You had some comment there. You said I was talking too loud or chastised you in front of the jury. Now are you asking the request for a mistrail [sic]?
Mr. Fredman [Defense Counsel]: I am not.
The Court: Are you making a request of any other release [sic]?
Mr. Fredman [Defense Counsel]: No, your honor.
The Court: All right.

In State v. Nevills, 530 S.W.2d 52 (Mo.App.1975), the court considered the threatened contempt in front of the jury. No objection was made and the court said that if the defendant believed that the court’s remarks prejudiced his case, he should object immediately and afford the court an opportunity to correct any erroneous impressions. While we might broadly consider the record made as an objection, defendant requested no further relief and cannot complain now. In State v. Nevills, supra, the court considered the remark, even though not preserved, and found no prejudice to the defendant. Based upon the record in this case as to the events relating to the voir dire, we reject defendant’s contention that the court committed reversible error.

Lastly, with reference to the questioning of defense witnesses by the court, it has been held that a trial court may actively participate in the proceedings and ask questions of witnesses, if not in the manner of a prosecutor. State v. Tash, 528 S.W.2d 775[20-27] (Mo.App.1975); State v. Pearson, 519 S.W.2d 354[7-9] (Mo.App.1975); Morris v. State, 547 S.W.2d 827[6-7] (Mo.App.1976). However, the court may not demonstrate by its conduct an attitude of bias or hostility against the defendant or the merits of his defense. Tash, supra; Morris, supra.

Our review of the transcript, and the questions posed by the trial court, failed to disclose the requisite bias or hostility so as to justify a finding of prejudicial error. The questions were brief and conveyed no sense of partiality. The trial court acted within the bounds of propriety. Accordingly, defendant’s last point is, also, denied.

Affirmed.

CLEMENS and GUNN, JJ., concur.

      . Rule 20.02(c) and (e) provide: •
      (c) Whenever there is a MAI-CR instruction or verdict form applicable under the law to the facts, the MAI-CR instruction or verdict form shall be given or used to the exclusion of any other on the same subject.
      (e) Giving or failing to give an instruction or verdict form in violation of this Rule or any applicable Notes on Use shall constitute error, its prejudicial effect to be judicially determined.


text:
    Elizabeth S. GUIGNON, Petitioner-Appellant, v. James C. GUIGNON, Respondent.
    No. 38075.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 14, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 13, 1979.
    Application to Transfer Denied May 17, 1979.

      Kenneth S. Lay, Tremayne, Lay, Carr & Bauer, Clayton, for petitioner-appellant.
   REINHARD, Presiding Judge.

Petitioner, former wife of respondent, appeals from an order of the trial court which modified an order for child support. The child support was increased from $37.50 per week per child to $50.00 per week per child for each of the two children.

Parties were divorced in January, 1971. The motion was heard on December 31, 1975. At the time of the divorce petitioner was unemployed. In 1973 she became a real estate agent and testified that her gross 1975 income was approximately $8,200.00. Respondent’s 1974 tax return shows a gross income of $34,000.00, which is about three times his income when divorced. Included in that income was a bonus of $10,200.00. In fact respondent had received a bonus every year from 1971 through 1974. In 1975, his base salary was $24,000.00. At the hearing on the motion to modify the child support, the Secretary-Treasurer of respondent’s company testified that at that time it had not been determined whether respondent would get a bonus for 1975. The court entered its order on January 2, 1976. Findings of fact and conclusions of law were neither requested nor given. Petitioner filed a motion to amend judgment or for a new trial. This was overruled. Prior to the ruling on the motion to amend petitioner requested that the court reopen the evidence to prove the subsequent payment of a bonus in early 1976.

Petitioner contends that “[t]he trial court erred and abused its discretion in refusing to increase the child support paid to Petitioner above $50.00 per week because that allowance of child support is not commensurate with Respondent’s present income and financial condition and is inadequate in the light of the children’s needs.”

Petitioner’s main complaint centers around the fact that respondent’s income has increased about 300% since the divorce but that the child support was increased by only Vs. Further, petitioner notes that the evidence shows respondent’s clear ability to pay a greater amount of child support.

In reference to petitioner’s repeated citing of respondent’s income as a base for the award, we note that an increase in a father’s income is not, in itself, sufficient reason to modify the child support award. In re Marriage of Engelhardt, 552 S.W.2d 356, 358 (Mo.App.1977).

Our review of the conduct of the court is governed by the oft-quoted standards established in Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976).

§ 452.340 recites the various factors to be considered in allocating the responsibility for child support. It is significant that under § 452.340 RSMo (Supp. 1975), “[t]he financial resources and needs of the noncustodial parent” comprise just one of the relevant factors. Although the father is primarily liable for support, the mother may also be called upon for support. Roberts v. Roberts, 553 S.W.2d 305, 306 (Mo.App.1977). Moreover, the statutory factors to be considered in awarding child support are non-exclusive. In re Marriage of Dodd, 532 S.W.2d 885, 888 (Mo.App.1976).

Here the children, ages 7 and 10, live with their mother in a home owned by her. Her present husband also lives there. Petitioner is now employed and earning income. She also has income from a trust and has a greater “net worth” than the respondent. The Court increased the respondent’s share of child support to $50.00 per week per child [$433.00 per month]. The petitioner admits that in addition to these sums, the respondent is providing for the educational and medical expenses of the children.

Petitioner claims needs for the children in the amount of $1,078.00 per month. Of this amount approximately $350 is for food, clothing, laundry and cleaning, “child care,” haircuts, gifts, pet expenses, and allowance. She further claims approximately $103.00 to cover recreational expenses. The balance of approximately $600.00 is for rent and mortgage (including monthly pro-rata of property taxes, insurance, etc.), utilities, car operation, insurance installment contracts, household items, personal loans, appliance repairs, exterminator, firewood, payments needed for new car, payments needed for a washer, and house repairs.

The award of child support is a matter properly within the sound discretion of the trial court. Roberts v. Roberts, 553 S.W.2d at 306; Larison v. Larison, 524 S.W.2d 159, 161 (Mo.App.1975). Considering the evidence as to the reasonable needs of the children, as to the items included by petitioner in figuring those needs, and as to respondent’s provision of both the educational and medical expenses of the children, we cannot find that the court abused its discretion in increasing the allowance to $50.00 per week per child.

Petitioner complains that the court erred in failing to reopen the evidence before it ruled on her motion to amend the judgment or to grant a new trial. She apparently would have shown that a bonus was paid to respondent in early 1976. The reopening of the evidence after Judgment but before ruling on the after-trial motions is within the discretion of the trial court.

The petitioner further claims that the court “erred in refusing to consider Respondent’s past bonus income in fixing the allowance. . . . ” Petitioner relies on In re Marriage of Vanet, 544 S.W.2d 236, 242 (Mo.App.1976), which states that the court may consider both past and anticipated earning capacity as a relevant factor in realistically assessing the proper amount of child support.

We have no quarrel with the holding in Vanet. In assessing the husband’s capacity to pay child support, the court should consider a history of bonuses as a part of average income, unless there is evidence that such bonuses are unlikely to continue. At the time of the hearing, there was evidence that the defendant had received bonuses since 1971 and that the bonuses had averaged $416.00 per month through 1974. At the hearing, the only evidence as to a possible bonus for 1975 came from an office of respondent’s company, offered by petitioner, who stated that no determination had been made as to a 1975 bonus. As previously stated, the court neither made nor was requested to make findings of fact and conclusions of law. We must assume that the court considered the evidence before it in increasing the award of child support, and as stated above, we find no abuse of discretion in the court’s action.

Affirmed.

CLEMENS and GUNN, JJ., concur.

      . Petitioner relies on the court’s memorandum overruling her after-trial motion. Although the language in that memorandum is subject to differing constructions, we cannot interpret the court’s statement as evidence that it failed to consider respondent’s history of bonuses. We construe this language to be a reference to the petitioner’s request to reopen the motion to receive evidence concerning a bonus allegedly paid subsequent to the hearing.


author: CLEMENS, Judge.

text:
    George ROSS, Appellant, v. Harrison SYMS, Respondent.
    No. 40204.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 14, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 13, 1979.
    Application to Transfer Denied May 17, 1979.

      Samuel A. Goldblatt, St. Louis, for appellant.
    Kortenhof & Ely, Ben Ely, Jr., St. Louis, for respondent.
   CLEMENS, Judge.

In this humanitarian negligence case the jury found against plaintiff-pedestrian and in favor of defendant-motorist. Plaintiff has appealed from the ensuing judgment, his only contention being that the trial court erred in twice overruling his objections to defendant’s closing jury argument.

We relate only the facts relevant to the challenged jury argument. Plaintiff was injured while attempting to walk across north-south, four-lane Goodfellow Avenue, midway between two cross streets; it was dark and during the evening rush hour. Plaintiff successfully crossed the first and second southbound lanes, hesitated at the center line, walked between two cars halted in the third lane, and had taken a step or two into the fourth lane when he was struck by the left-front of defendant’s car. Defendant’s speed was estimated at from twenty to forty miles an hour; after colliding with plaintiff defendant came to a stop within one or two car lengths.

The issues submitted to the jury were framed by two instructions. By MAI 17.15 plaintiff submitted defendant’s humanitarian negligence in failing to slacken his speed or sound a warning. Defendant conversed with MAI 33.06(2) submitting inadequate time to slacken or warn.

In considering plaintiff’s contention of reversible error in overruling his objections to defendant’s closing arguments, we are guided by two entrenched principles. First, counsel is allowed a wide latitude in arguing inferences from the evidence. The trial court has a broad discretion in initially ruling on the propriety thereof and thereafter in determining whether prejudice has resulted. Eickmann v. St. Louis Public Service Company, 323 S.W.2d 802[15—17] (Mo.1959). The rationale of this principle is explained in Lineberry v. Robinett, 446 S.W.2d 481[7] (Mo.App.1969), where the court said the principle was necessary because of the “utter impossibility of regulating the course of argument with absolute precision.” The court added that a liberal latitude was allowed counsel in jury argument. Second, on appeal we recognize the trial court had a better opportunity than we to appraise the effect the challenged argument had on the jury and is allowed considerable discretion in ruling on objections to jury argument, both at trial and on a motion for new trial. That appraisal by the trial court will be negated on appeal only if we can say the trial court clearly abused its discretion. Helfrick v. Taylor, 440 S.W.2d 940[10] (Mo.1969), and Eickmann, supra. We follow these principles in considering the two challenged arguments.

The first argument arose when defendant related the evidence of plaintiff’s pi ogress across the first, second and third lanes and then argued defendant had no humanitarian duty to put on his brakes until plaintiff “enters the zone of danger when he enters that Lane No. 4.” Plaintiff’s objection “that’s not the law” was overruled.

By this argument defense counsel was contending plaintiff did not come into a position of immediate danger until he entered the fourth lane. The “first and basic fact” of a humanitarian cause is a plaintiff coming into a position of immediate danger. Crockwell v. Oldani, 410 S.W.2d 701[1—5] (Mo.App.1967). What constitutes such a position varies with the circumstances of the case. Yarrington v. Lininger, 327 S.W.2d 104[8—10] (Mo.1959). Just when a plaintiff comes into that position is a question of fact for the jury. Price v. Nicholson, 340 S.W.2d 1[6] (Mo. banc 1960); Croekwell, supra.

Considering the first challenged argument, we deny plaintiff’s contention that defense counsel was usurping the court’s prerogative by declaring the law. Instead, he was arguing that the evidence warranted a finding plaintiff did not come into immediate danger until he entered the fourth lane.

As we held in Larson v. Alton and Southern Railroad Company, 431 S.W.2d 687[6, 7] (Mo.App.1968): “The argument of counsel was within the confines of the applicable law; it did not inject any false issues or misinform the jury; and was not an attempt to give an instruction on the law different from that given by the court.”

We hold the trial court, in exercising its discretion to control jury argument, did not err in overruling plaintiff’s first objection.

The second challenged argument arose when defense counsel referred to plaintiff’s humanitarian instruction and interpreted it as saying: “Okay, Mr. Plaintiff, you may have been at fault, but we are going to give you one chance to still recover damages against the defendant, but that is only one chance, and it is a small chance.” Plaintiff’s counsel objected, stating, “that is not one chance or a small chance; that is the law.” The court overruled plaintiff’s objection.

We consider defense counsel’s jury argument in light of the principle that he is allowed wide latitude in arguing how the evidence applies to an instruction. Eick-mann and Lineberry, supra. And, defense counsel had a right to comment on how the evidence applied to plaintiff’s humanitarian instruction. Warriner v. Eblovi, 485 S.W.2d 700[8] (Mo.App.1972); Rhomberg v. Israel, 222 Mo.App. 238, 296 S.W. 860[5] (1927). By the challenged argument defense counsel was stating that plaintiff’s only right to recover was by proving each element of his humanitarian submission, and arguing that under the evidence that was a small chance.

We view plaintiff’s challenge in the light of the principles previously discussed: Counsel is allowed a liberal latitude in arguing how the evidence applies to the instructions; the trial court has a wide discretion in ruling on the propriety of argument; on appeal we uphold trial courts’ rulings absent a clear abuse of discretion. So considered, we hold the trial court did not prejudicially err in overruling plaintiff’s objection to the quoted argument.

Judgment affirmed.

REINHARD, P. J., and GUNN, J., concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Charles Bernard JONES, Defendant-Appellant.
    No. 39630.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 14, 1979.
    Erica Leisenring, Asst. Public Defender, St. Louis, for defendant-appellant.
    Richard Thurman, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   REINHARD, Presiding Judge.

Defendant appeals from a conviction by a jury of Burglary First Degree and Robbery First Degree. Under the Second Offender Act the Court sentenced him to 20 years on each charge, the sentences to run concurrently.

Because of the nature of defendant’s complaints it is unnecessary for us to recite the facts. As to both of defendant’s allegations of error, the Supreme Court of Missouri has previously ruled adversely to defendant’s position.

Defendant’s first point involves the proof of a prior conviction under the Second Offender Act. He alleges that the court improperly admitted State’s Exhibit 14, which was Volume 62 of the Permanent Record Book of the Circuit Court. Defendant specifically claims that “The state failed to show entries were made on or about the time the event occurred,” and therefore did not qualify under the Business Records Act.

In State v. Washington, 335 S.W.2d 23 (Mo.1960) the deputy circuit clerk produced and read from the original circuit court records, as was done here. Defendant objected that the state had not complied with the Business Records Act. The court rejected defendant’s argument, saying that these court records were required to be kept before the adoption of the Business Records Act and were admissible in evidence even though they failed to meet the requirements of that law. In this case Exhibit 14 was admissible without compliance with the Business Records Act. This point is without merit.

Defendant also alleges that “[T]he trial court erred in permitting the State to ask its own witnesses whether they were certain of their identification of appellant as the culprit,” contending that such questions invade the province of the jury. The complaint involved the testimony of witnesses Malone and Levenberry. Similar questions were asked and the same point raised in State v. Taylor, 496 S.W.2d 822 (Mo.1973). The Supreme Court said at 824, “The propriety of the question was for the trial court . . and, as in Taylor, we find no abuse of discretion.

Affirmed.

CLEMENS and GUNN, JJ., concur.