text:
    STATE of Missouri, Respondent, v. William MILLER, Appellant.
    No. 38949.
    Missouri Court of Appeals, St. Louis District, Division One.
    Nov. 22, 1977.
    Robert C. Babione, Public Defender, Terry Burnet, Asst. Public Defender, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Phillip Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
   CLEMENS, Presiding Judge.

A jury found defendant William Miller— as an accomplice of Ben Cherry — guilty of sodomy and attempted rape and the court imposed concurrent eight- and five-year sentences. Defendant appeals, claiming insufficient evidence of his participation, and also, that he was erroneously denied jury argument about the absence of fingerprints.

The victim and her young daughters were asleep in their apartment when a neighbor came to use the telephone. She went to investigate a noise in the hall and encountered defendant, who subdued, bound and blindfolded her. Another man, Ben Cherry, carried her into a bathroom and forced her to commit fellatio while defendant held a pistol to her head. He continued to do so as Cherry carried the victim into a bedroom, forced her to the floor and attempted to rape her. Someone was heard ransacking the apartment when police arrived and at that moment there was also a sound of a window being broken out at the rear of the apartment. Police later found defendant, injured and limping, hiding in a rear stairwell. He told them he had been “upstairs with a friend.” He was taken to a hospital; the victim was taken to the same hospital, saw defendant there, and identified him to police as her attacker.

Challenging the sufficiency of the state’s evidence, defendant cites but one case, State v. Lee, 404 S.W.2d 740 (Mo.1966), holding at [10, 11] that there is no liability “if there is no showing that a defendant had any connection with the crime until after it has been committed.” That is not our case. Pertinent to our case, Lee further held at [6-8]: “Evidence sufficient to justify the jury in finding that defendant did in any way aid, and abet or encourage another in the commission of a crime is sufficient to support a conviction.” That was the evidence here. We deny defendant’s challenge to the sufficiency of the evidence.

Defendant’s procedural point is that the trial court erred in barring his proposed argument that the state failed to produce defendant’s fingerprints, contending the absence of his fingerprints would tend to prove his innocence.

The only evidence about fingerprints was shown on cross examination of an arresting police officer. He told of seeing another officer “dusting for fingerprints” in the victim’s apartment, just where he could not say. Defense counsel proposed to argue to the jury that the “absence of fingerprints” tended to prove defendant’s innocence, that is, that he had not been in the victim’s apartment. The trial court banned the proposed argument.

We review defendant’s point in the light of our ruling in State v. Kimmins, 514 S.W.2d 381 [1, 2] (Mo.App.1974): “The control of oral argument is largely within the discretion of the trial judge.” So viewed, we find no error. There was no evidence of the nature or extent of police search for fingerprints nor whether any fingerprints were or were not found. That was so in State v. Wiggley, 515 S.W.2d 791 [2, 8] (Mo.App.1974), wherein we ruled: “It is not incumbent on the State to search for fingerprints and it is not error to refuse to let defendant comment on the absence of such evidence. . . . ”

Defendant proposed to argue that he was not in the victim’s apartment simply because a police officer made a general statement that police had “dusted for fingerprints.” We hold that statement, standing alone, was an insufficient basis for defendant’s conclusion he was not present in the apartment. The trial court did not abuse its discretion in precluding defendant’s proposed argument.

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.

      . See State v. Dethrow, 510 S.W.2d 207, l.c. 209 (Mo.App.1974), holding: “A simple solution to the whole problem would have been for defendant to call as his witness the ETU to establish what, if anything, it did or found.”


source: Caselaw Access Project

author: CLEMENS, Presiding Judge.

license: Public Domain

text:
    Thomas M. McNIFF, Appellant, v. MISSOURI PACIFIC RAILROAD CO., Respondent.
    No. 38563.
    Missouri Court of Appeals, St. Louis District, Division One.
    Nov. 22, 1977.

      Hale W. Brown, H. William Brown, Kirk-wood, for appellant.
    Charles M. Lippert, St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Wrongful death action by widower arising from a railroad-crossing collision between defendant’s train and an automobile driven by plaintiff’s decedent. Verdict was for defendant and plaintiff appeals from the adverse judgment.

Plaintiff contends on appeal that the trial court erred in orally directing the jury to disregard previous erroneous comments by plaintiff’s counsel about the lack of gates. Plaintiff contends the court’s comment was an instruction on the law, which could properly be given only by a written instruction.

The collision occurred in Kirkwood, St. Louis County, where Geyer Road crosses defendant’s tracks. The crossing was guarded by flashing lights but not by crossing gates. In direct examination of plaintiff’s first witness, a retired locomotive engineer, plaintiff’s counsel was permitted to show defendant did have crossing gates where its tracks crossed another public street, Lindbergh Boulevard. This was over defense objection that the location of crossing gates was under exclusive control of the Public Service Commission. Later, plaintiff’s counsel asked the engineer if defendant did install crossing gates at Geyer Road some time after the fatal collision. Defense counsel moved for a mistrial. Plaintiff’s counsel said he realized he should not have asked the question and withdrew it. The court reserved its ruling on a mistrial and called a recess to consider the motion, declaring that in view of § 389.640, the location of crossing gates was within the exclusive jurisdiction of the Public Service Commission. Plaintiff’s counsel urged the court to deny defendant’s motion for a mistrial, suggesting his erroneous statements about crossing gates could be cured by instructing the jury to disregard his statements.

After an overnight recess the trial court informed counsel it was prepared to order the jury to disregard the crossing-gate comments because only the Public Service Commission could prescribe the installation of crossing gates, this to “take away a potential inference which . . might still be in the minds of the jury.” The court then invited counsel to object to its intended ruling. Plaintiff’s counsel responded he had neither comment nor suggestion. The court then denied defendant’s motion for a mistrial, and told the jury:

“. . . The court instructs the jury that it is to disregard the comment made by plaintiff’s attorney regarding the erection or installation of crossing gates. That comment was made just before we finished. That comment is to be disregarded by the jury, and it is ordered stricken from the record.
“The Court further instructs the jury that a check with the Missouri law reveals that only the Missouri Public Service Commission has the exclusive authority to indicate when and where crossing gates should be installed and erected, and it is the exclusive responsibility and the exclusive authority of the Missouri Public Service Commission to make that determination.
“With those instructions in mind, we will now continue with the case.”

This was a correct declaration of the substantive law as to the lack of crossing gates. State ex rel. Kansas City v. Public Service Commission, 524 S.W.2d 855[2] (Mo.1975).

The trial resumed as to details of the crossing collision and concluded with a defendant’s verdict. After-trial motion and appeal followed.

The sole issue is the propriety of the trial court making the quoted oral comments instead of giving a written instruction. We need not reach the lack of substantive merit of that contention. This, because plaintiff’s counsel, as recited above, acknowledged his error in injecting the statements about crossing gates, suggested the error could be cured by instructing the jury to disregard his statements, and declared he had neither comment nor suggestion as to the trial court’s announced intention to order the jury to disregard the improper comments. And, after the trial court had done so, plaintiff’s counsel did not object.

Plaintiff utterly failed to preserve for review the objection he now belatedly raises.

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.

      . MAI 34.01, Withdrawal Instructions, declares: “Essentially the purpose of a withdrawal instruction is served by the Court sustaining a motion to strike and admonishing the jury to disregard the evidence. However, in certain, instances, the trial court may determine that such action is inadequate or untimely and that a written instruction is necessary.”


author: SWOFFORD, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Clarence HUNTER, Appellant.
    No. KCD 28512.
    Missouri Court of Appeals, Kansas City District.
    Dec. 5, 1977.
    Motion for Rehearing and/or Transfer Denied Dec. 27, 1977.

      Clarence Hunter, pro se.
    Joe Hamilton Scott, Public Defender, St. Joseph, for appellant.
    " Cynthia A. Clark, Michael A. Insco, St. Joseph, John D. Ashcroft, Atty. Gen., W. Mitchell Elliott, Asst. Atty. Gen., Jefferson City, for respondent.
    Before PRITCHARD, P. J., SWOFFORD, C. J., and DIXON, J.
   SWOFFORD, Chief Judge.

The appellant (defendant) was charged with felonious assault (§ 559.180 RSMO 1969), tried before a jury, found guilty, and sentenced to twenty (20) years in the Department of Corrections under the Second Offender Act.

The sufficiency of the State’s evidence is not directly challenged so a brief summary thereof will suffice.

On the morning of January 27, 1975, the defendant and Robert Brown, each armed with handguns, entered and robbed the Park Bank at St. Joseph, Missouri. Responding to an alarm, police officer Manuel McClasky entered the first set of doors of the bank’s entranceway, when the defendant carrying the loot from the robbery came through the inner door of the en-tranceway on his way out of the bank. Officer McClasky and the defendant made bodily contact as a result of which the defendant was thrown headfirst down the steps of the entranceway. At about this time Robert Brown came through the inner door. Officer McClasky hit Brown with his shoulder, the two struggled and Brown shot McClasky in the head. Both the defendant and Brown were apprehended and taken into custody by other police officers outside the bank as they attempted to flee the scene.

Officer McClasky recovered from his wound and testified at trial.

In the initial stages of these proceedings the defendant was represented by the office of the Public Defender. However, he requested the trial court to remove the Public Defender as his counsel and permit the defendant to conduct his own defense. Defendant, therefore, appeared in his own defense at the trial, with the Public Defender in attendance to advise and assist him.

The defendant did not testify but he offered the testimony of his accomplice in the robbery, Robert Brown, then serving a 45-year sentence upon a plea of guilty for the assault upon Officer McClasky at the time of the robbery. Brown freely admitted his participation in the Park Bank robbery with the defendant and identified pictures taken within the bank during the robbery, pointing out his photograph and that of the defendant. However, he testified that he shot .Officer McClasky “accidentally” during a scuffle with him at the bank entrance.

Other pertinent evidence adduced at the trial will be hereafter noted as relating to the points here raised by defendant.

These points are five in number and may be thus summarized: One, that the court erred in sustaining an objection to the defendant’s statements to the jury in his closing argument that “I know I did not shoot that officer” and “Defendant did not shoot that officer”; two, that the court erred in refusing to instruct the jury on the defense of accidental shooting which the court was required to give in the light of Brown’s testimony that he shot Officer McClasky “accidentally”; three, that the court erred in allowing the prosecutrix to argue about the amount of force necessary to pull the trigger of the assault weapon; four, that the court erred in refusing to declare a mistrial when FBI Agent Crum testified he found no traces of gunpowder on the gloves worn by either Brown or the defendant but that “under the tests he performed it would be rare to find any anyway,” since this latter qualification had not been disclosed to defendant upon pre-trial discovery under Cr.Rule 25.32; and, fifth, the defendant’s motion for judgment of acquittal should have been sustained since the evidence was insufficient to support a conviction for assault with malice because the evidence “showed the shooting was accidental”.

The underlying and basic theory of defense is that the defendant did not personally shoot Officer McClasky but that Brown did so accidentally. This theory is invalid under the facts disclosed in this record.

In the first place, the state did not undertake to charge, prove or submit that the defendant shot McClasky. All the evidence established was that the officer was shot by the .22 caliber handgun carried by Brown during the course of the armed robbery of the Park Bank by Brown and the defendant as coperpetrators and while they were attempting to escape with the loot. The state’s case against the defendant was based and submitted upon the theory that he and Brown acted with a common purpose and design to rob the bank and that the defendant was an accomplice of Brown’s in the commission of that felony, during the very course of which the assault upon McClasky occurred. Indeed, the testimony of Brown, offered by the defendant, fully supported this theory in all particulars. Thus, both would be equally responsible for the malicious assault upon McClasky regardless of which one actually committed the act of assault. State v. Young, 490 S.W.2d 28, 30[3, 4] (Mo.1973); State v. Bolden, 473 S.W.2d 355, 356[1] (Mo.1971); State v. Jones, 524 S.W.2d 186, 187[6] (Mo.App.1975).

Generally, the same defenses are available in a charge of felonious assault as in the charge of homicide and these would include excusable assault (or homicide) and accident. But in neither such charge would those defenses be available where the evidence disclosed that the assault (or homicide) occurred while the defendant was engaged in the commission of an unlawful act or a lawful act by unlawful means. Or stated differently, the defense of excuse or accident requires that the accused act without wrongful purpose while engaged in a lawful enterprise. State v. Campbell, 551 S.W.2d 940, 942-943[6] (Mo.App.1977); State v. Milentz, 547 S.W.2d 164, 169[4] (Mo.App.1977).

The defense of “accident” was not available since the undisputed evidence was that the assault upon Mcclasky occurred during an armed robbery of the Park Bank by the defendant and Brown. Defendant’s Points II and V are ruled against him.

As has been noted, the defendant did not testify and in his closing argument to the jury (as his own counsel) he stated to the jury “ * * * but I know I did not shoot that officer.” An objection was sustained, the jury was instructed to disregard the remark, and defendant was admonished by the court that he could not testify in his closing argument but could only discuss the evidence. Immediately the defendant continuing his argument, stated, without objection, “The evidence did not prove the defendant shot officer McClasky.”

During the prosecutrix’s closing argument the court allowed, over objection, the prosecutrix to state and demonstrate that “it took an effort to pull the trigger” of the assault weapon. Defendant argues that the degree of force required to pull the trigger was not in evidence; that expert evidence was necessary to establish that fact; and, that there was no showing that the gun was in the same or similar condition at the time of the argument as it was at the time of the robbery. These arguments are not persuasive. As to the condition of the gun, it was offered as an exhibit by the state and received in evidence without objection. Further, the prosecutrix in her argument that “an effort” was required to pull the trigger and her demonstration was not posing as an expert or specifying any “degree” of force necessary. Also, the jury was free to examine the gun and draw the same or other inferences than those of the prosecutrix. See, State v. Ferrell, 233 Mo. 452, 136 S.W. 709, 710[3] (1911).

The scope of closing arguments rests largely within the discretion of the trial court and an appellate court will not interfere unless the record clearly shows an abuse of such discretion to the defendant’s prejudice. State v. Connell, 523 S.W.2d 132, 137[11] (Mo.App.1975). No such abuse of discretion appears here.

Defendant’s Points I and III are ruled against him.

The expert witness, FBI Agent Crum, testified for the state that he made gunpowder tests of the two pairs of leather gloves identified as those worn by the defendant and Brown during the bank robbery and assault upon McClasky and that such tests did not disclose any traces of gunpowder. The results of these tests were disclosed to the defendant on pre-trial discovery. At the trial, however, Crum went further and stated that it would be rare under the tests he performed to find any traces of gunpowder on the leather gloves. Defendant urges error by reason of the State’s failure to disclose upon pre-trial discovery this qualification by Crum regarding his tests. There was no dispute that one of the pairs of gloves was worn by Brown who “accidentally” shot McClasky. It is impossible to see how the absence of gunpowder traces on any of the gloves would be relevant to or decisive of any real issue in the case. The admission of the theretofore undisclosed qualification of Crum’s testimony was at best harmless, and, in fact, in the state of this record meaningless. It was not exculpatory evidence withheld or incul-patory evidence omitted which resulted in any prejudice to the defendant or was “fundamentally unfair” in the context of his right to a fair trial, the recognized standards by which failure to make discovery is judged. State v. Johnson, 524 S.W.2d 97, 101-103[5] (Mo. banc 1975); State v. Staple ton, 539 S.W.2d 655, 659[4] (Mo.App.1976). Defendant’s Point IV is ruled against him. The judgment is affirmed.

All concur.


author: WASSERSTROM, Judge.

text:
    Eugene McENTIRE, Appellant, v. PLAZA BANK OF COMMERCE, Respondent.
    No. KCD 28796.
    Missouri Court of Appeals, Kansas City District.
    Dec. 5, 1977.
    Motion for Rehearing and/or Transfer Denied Dec. 27, 1977.
    Philip C. Ehli, Kansas City, for appellant.
    Darrell L. Havener, Robert B. Best, Jr., Kansas City, for respondent.
    Before TURNAGE, P. J., and WASSER-STROM and SOMERVILLE, JJ.
   WASSERSTROM, Judge.

Eugene McEntire sues here for alleged wrongful garnishment. The trial court sustained a motion for summary judgment filed by Plaza Bank of Commerce, and McEntire appeals. Affirmed.

The present suit grows out of an earlier action brought by Plaza against McEntire in 1968 before a Magistrate Court. In that prior action, Plaza claimed $714.15 and McEntire counterclaimed for $500. The magistrate court telescoped together into one net judgment the amounts to be awarded upon the principal claim and that upon the counterclaim, as required by Section 517.270 RSMo 1969, with a resulting award in favor of Plaza in the amount of $350. Plaza filed an appeal to the circuit court, but McEntire did not. Thereafter, on December 9, 1970, Plaza filed a voluntary dismissal of its appeal, and the circuit court entered its order that the appeal be dismissed and that the case be remanded to the magistrate court. McEntire took no action with respect to the latter order.

On February 9, 1972, Plaza secured garnishment in aid of execution on the $350 judgment against McEntire, and the sheriff received $43.60 from the garnishee. On May 24, 1972, Plaza secured a second garnishment upon which the sheriff received $335.86. McEntire prosecutes this lawsuit on the theory that those two garnishments were without foundation in any valid judgment against him.

Before addressing that contention, disposition must be made of Plaza’s pending motion to dismiss this appeal. That motion is well grounded insofar as it attacks McEn-tire’s Point on Appeal Number II. That point is set forth in McEntire’s brief as follows: “II. When a party plaintiff had judgment in magistrate court, and feels he is an aggrieved party (only an aggrieved party may appeal), thereafter appeals to the circuit court, and the appeal is perfected in circuit court all the claims, causes of action, demands and counter-claims are lodged in the circuit court and any effort by the circuit court to remand the claim or the counterclaim also was a nullity. Appellant cannot have his cake and eat it.” This point grossly violates Rule 84.04(d) and will therefore be disregarded. In other respects, McEntire’s brief complies adequately with Rule 84.04. Plaza’s motion to dismiss, other than as related to McEntire’s Point Number II, is therefore overruled.

McEntire’s remaining point is that the trial court erred in sustaining Plaza’s motion for summary judgment because Plaza’s appeal from the magistrate judgment and its subsequent dismissal of that appeal voided the magistrate judgment and left Plaza with no basis upon which to levy execution and garnishment. In support of that argument, McEntire relies principally on Turner v. Northcut, 9 Mo. 251 (1845) and Lee v. Kaiser, 80 Mo. 431 (1883). The Turner opinion does contain this language favorable to McEntire: “When an appeal [from a justice court] is taken by either party, its effect is not only to suspend, but to destroy the effect of a judgment of a justice; it makes it as though no judgment had been rendered.” This language, however, was only dictum. The facts in that case were that after losing in the justice court, the plaintiff appealed and thereafter voluntarily discontinued his action in the form of a non-suit. The actual point upon which the case turned as stated by the Supreme Court was: “whether a plaintiff who sues in a justice’s court, and has a judgment rendered against him, from which he appeals to the Circuit Court, and afterward voluntarily discontinues his action or takes a non-suit, is barred by the judgment of non-suit or discontinuance, or whether he may sue again on his cause of action?” The issue here differs in that Plaza did not dismiss its cause of action, but only its appeal.

McEntire’s other principal authority, Lee v. Kaiser, is likewise readily distinguishable. In Lee, the plaintiff had previously sued on a note in a justice court and had lost. From that justice court judgment he had appealed and then took a non-suit in the Circuit Court. Thereafter plaintiff filed this second lawsuit and the question for decision was whether the prior justice court judgment constituted a bar to the second suit. The court held in the negative on the ground that plaintiff had a right to take a voluntary non-suit even in the circuit court. Unfortunately the headnote to this decision (prepared by the then Supreme Court reporter pursuant to the provisions of Laws 1877, p. 235) incorrectly reported the holding of the court in the following garbled fashion:

“The plaintiff on appeal from a justice’s court, has the right to dismiss his appeal in the circuit court, and thereby vacate entirely the judgment of the justice, and such judgment of nonsuit in the circuit court, and judgment of the justice, constitute no bar to another action.”

Here again, just as in Turner, the real point of the case was simply that a plaintiff on appeal from a magistrate (formerly justice) court has a right to take a voluntary non-suit and in that way avoid the magistrate judgment.

Since the rendition of those two very old decisions, subsequent cases have corrected the erroneous impression created by the dictum in Turner and the poorly worded headnote in Lee. The more recent cases are referred to and well summarized in Pan American Realty Corp. v. Muroff, 456 S.W.2d 647, 649 (Mo.App.1970). The correct rule is that an appeal from a magistrate judgment suspends that judgment during the pendency of the appeal; if the plaintiff then dismisses his entire cause of action, the magistrate judgment is eliminated as though it had never been; but if there is merely a dismissal of the appeal, then the magistrate judgment is “revivified” and stands in full force and effect. Inasmuch as Plaza merely dismissed its appeal, thereafter the magistrate judgment stood in force and sustained the garnishments.

McEntire argues, however, that Plaza cannot bring itself within that rule, for the alleged reason that Plaza’s only choice was to dismiss its entire cause of action and that it had no power to merely dismiss its appeal. In this regard McEntire’s brief refers to “the legal distinction that exists in law between dismissing the cause of action, which is done by the plaintiff, and dismissing an appeal which is done by the opposing party or by the Court.” In connection with this proposition, McEntire cites Missouri Appellate Practice and Extraordinary Remedies, 2nd Edition, MoBar CLE, Sec. 1.7-5.

Neither that text nor any other authority cited or found states that a plaintiff who appeals from a magistrate judgment is dis-entitled from later dismissing that appeal in the circuit court. Indicating strongly to the contrary of that proposition is Dallavalle v. Berry Grant Company, 462 S.W.2d 175 (Mo.App.1970), one of the authorities cited in the CLE text. Moreover, even if McEntire were correct in his theory that Plaza had no power to dismiss its appeal, he does admit that the Circuit Court could do so. The Circuit Court did just that by its order of December 9, 1970.

McEntire’s assignment of error having no merit, the judgment is affirmed.

All concur.


author: SHANGLER, Judge.

text:
    STATE of Missouri ex rel. Ralph MARTIN, Relator, v. Honorable Robert W. BERREY, III, Respondent.
    No. KCD 29641.
    Missouri Court of Appeals, Kansas City District.
    Dec. 5, 1977.
    Motion for Rehearing and/or Transfer Denied Dec. 27, 1977.

      Ralph L. Martin, Pros. Atty. for Jackson County, by Robert Frager, Asst. Pros. Atty. for Jackson County, Kansas City, for relator.
    Albert Copaken, Sylvia Copaken, Kansas City, for respondent.
    Before SWOFFORD, C. J., and SHAN-GLER, PRITCHARD, DIXON, WASSER-STROM, SOMERVILLE and TURNAGE, JJ.
   SHANGLER, Judge.

This proceeding in prohibition seeks to restrain the magistrate from dismissal of an information which charges the defendant with fraudulent use of a credit card for value over $100 in violation of § 561.415, RSMo 1969. The magistrate construed the statute to charge a misdemeanor and determined that dismissal by the State of an earlier proceeding against the defendant under the statute had already put him once in jeopardy for that charge, so that the defendant was not again subject to lawful prosecution for that offense. The magistrate announced intention to dismiss the subsequent information on that charge which pended before him, and on the application of the State our preliminary rule issued to enjoin that threatened action.

The premise of the magistrate that § 561.415 charges a misdemeanor is valid, but the further premise that the first proceeding brought against the defendant under § 561.415, and then dismissed, placed the defendant in jeopardy, is fallacious.

The procedures which brought the magistrate to his decision to dismiss are simply these: A complaint on the oath of officer Cleeton was filed and eventually lodged before Magistrate Davis in Jackson County. After the witnesses were sworn in, Magistrate Davis informed the prosecutor of his view that the complaint pleaded a misdemeanor and that he intended to try the case as an offense of that grade. The prosecutor, on the other hand, considered that the fraudulent use of credit card for goods in excess of $100 charged a felony under § 561.415, and so withdrew the complaint.

Another proceeding was then filed before Magistrate Berrey — our respondent — on an identical General Complaint form with the same substantive statutory allegation of offense against the defendant, but this time on the oath of one Carl Bussey, an assistant prosecutor. Magistrate Berrey made the determination that the defendant had already been put once in jeopardy by the earlier dismissal of the complaint and so was not subject to further prosecution for that conduct.

It may be accepted, for argument, that jeopardy attaches at the time trial commences — that is, when the jury is empaneled and sworn or, in a trial to the court, when the witnesses are sworn. 22 C.J.S. Criminal Law § 241. That, of course, presupposes that a criminal action has commenced before a tribunal with competent jurisdiction over the subject matter. It is provided clearly by law that all felonies and misdemeanors shall be prosecuted by indictment or information [Rule 21.01] and that prosecutions before a magistrate for misdemeanor shall be by information only. [Rule 21.02]. It is provided also that an information shall be a plain, concise and definite written statement of the essential facts which constitute the offense charged, signed by the prosecutor. Rule 24.01(a).

It is evident that the initial complaint signed by a police officer was not an information within these essential terms. An information means a prosecution instituted by an officer with the duty to prosecute criminal offenses; the oath of a private person confers no jurisdiction to adjudicate an offense. State v. Thompson, 81 Mo. 163 (1883). In the absence of formal accusation by information Magistrate Davis acquired no jurisdiction over the criminal prosecution against the defendant. State v. Gladies, 456 S.W.2d 23, 25[3-5] (Mo.1970). There was no risk of determination of guilt, and therefore, no jeopardy. United States v. Lasater, 535 F.2d 1041, 1047[5] (8th Cir. 1976).

It is equally evident that the subsequent proceeding before Magistrate Berrey, although on a form captioned General Complaint, was an information — a written accusation of offense subscribed by the oath of the prosecutor. Rule 24.01(a).

It is the contention of the State that where loss from the fraudulent use of credit card exceeds $100, the statute makes the offense a felony. The jurisdiction of the magistrate in a case of felony — so the argument continues — is limited to the preliminary inquiry on complaint whether there is probable cause that a felony was committed and that the defendant was the actor. Such a proceeding, we agree, is in no sense a trial, does not determine guilt or innocence, and so cannot give rise to principles of double jeopardy. State v. Crouch, 353 S.W.2d 597, 600[6] (Mo.1962); State v. Thomas, 529 S.W.2d 379,382[2-5] (Mo.1975). We have concluded that § 561.415 charges a misdemeanor but for other reasons which appear — not an offense within the competency of a magistrate to adjudicate.

The terms of § 561.415 specifically declare that “[a]ny person, firm or corporation, [who defrauds another by the use of a charge account, credit card or other credit device] is guilty of a misdemeanor” and is punishable by fine not to exceed five hundred dollars or confinement in the county jail for not more than one year, or both. The statute then provides that where the value of the goods lost from the deception exceeds one hundred dollars the punishment shall be by fine or confinement in the county jail or by “imprisonment by the Department of Corrections for not more than five years”. The relator argues that the statutes which define felony and misdemeanor conclusively determine the grade of offense according to the mete of punishment. Section 556.020 defines a felony to mean any offense punishable with death or imprisonment in the penitentiary and § 556.040 defines misdemeanor as any offense punishable by fine or imprisonment in the county jail. Thus, contends the State, misdemean- or designation notwithstanding, the provision of § 561.415 which affixes punishment in the penitentiary conclusively settles that the offense charged in the information is a felony.

The relator cites State v. Daniels, 487 S.W.2d 465 (Mo.1972) to support that position. There the defendant was charged with an attempt to obtain merchandise of more than $100 value by the fraudulent use of a credit card. The defendant was found guilty and sentenced to a term of two years in the penitentiary. The court sua sponte questioned the validity of the punishment for an attempted violation of § 561.415. The court concluded [l.c. 487 S.W .2d 469]:

Defendant was charged with and found guilty of an attempt to obtain merchandise of a value of more than $100. It is our view that any attempt, regardless of the value of the merchandise, is a misdemeanor under the statute. The more severe felony punishment is only applicable when the merchandise is actually obtained.

The relator takes hold of this literal language to prove the contention that to obtain goods of the value of more than $100 by fraud constitutes a felony under § 561.-415. It is evident, however, that the terms misdemeanor and felony are used in the opinion merely to describe punishment and not to define the grade of offense. That opinion holds implicitly that where an offense is punishable — as is violation of § 561.415 — by either confinement in the county jail or imprisonment in the penitentiary, the law of attempt [§ 556.150(4)] allows a punishment by confinement in the county jail only for not more than one year. That is to say [in the idiom of the opinion] as a misdemeanor. The decision does not deal with the question present here: rather, in the context of opinion, the allusion to “[t]he more severe felony punishment” refers to punishment — not grade of offense.

The question before us is authoritatively controlled by State ex rel. Butler v. Foster, 187 Mo. 590, 86 S.W. 245 (banc 1945). The issue in Butler was whether violation of the bribery statute [now § 557.090] was a felony and so within the jurisdiction of the circuit court, or a misdemeanor. That statute, as does § 561.415, designated the offense a misdemeanor but also provided for imprisonment in the penitentiary under certain circumstances. The decision rests on the principle that a Legislature, which alone can create an offense and define the punishment, also has the plenary power to fix the grade [l.c. 86 S.W. 250]:

[WJhere an offense is not designated by the statute which creates it either as a felony or misdemeanor, but its punishment is prescribed, then, by recourse to sections [556.020 and 556.040], the grade of such offense is determined by the punishment. If the punishment is such that the offender, if convicted, may be incarcerated in the penitentiary, it is a felony; if by imprisonment in the county jail, or by fine only, then it is a misdemeanor; but when the Legislature itself names the offense, then there is no place for controversy; it is of whatever grade the Legislature provides. It designated this offense a misdemeanor. It did not call it, or any part of it, a felony, nor leave it without a name and a grade.

Thus, the repugnancy between the general statutory definitions of felony and misdemeanor and § 561.415 which classifies a violation as a misdemeanor is apparent only.

Another determination — not noticed by the parties but implicit for decision — remains: whether a magistrate vested with misdemeanor jurisdiction may nevertheless punish by imprisonment in the penitentiary as § 561.415 allows. In Butler, the statute designated the offense a misdemeanor although punishable by imprisonment in the penitentiary, but the court of criminal correction vested with exclusive jurisdiction of misdemeanors in St. Louis city was restricted by statute [present § 479.100] to crimes punishable by fine or imprisonment in the county jail. In the face of this express limitation, Butler held [l.c. 86 S.W. 250] that the misdemeanor designation of offense notwithstanding, the circuit court alone was vested with jurisdiction in all crimes punishable by imprisonment in the penitentiary.

A similar anomaly appears here. The magistrate court has jurisdiction as conferred by law. Constitution of Missouri of 1945, Article 5, § 20. That tribunal possesses only those powers expressly granted by statute and may not resort to inferences to enlarge jurisdiction. State v. Anderson, 413 S.W.2d 161, 162[2, 3] (Mo.1967). Section 543.010 confers on the magistrate a concurrent original jurisdiction with the circuit court in all cases of misdemeanor. Section 543.260 authorizes the magistrate after determination of guilt to fine or commit the defendant to the county jail for the term found in the judgment. Although this provision speaks in terms of limits of judgment rather than jurisdiction, the statutes which confine the authority of a magistrate to the trial of misdemeanors and define that grade of offense in terms of the judgment which may be imposed [§ 543.010 and § 556.040] determine one function in terms of the other. We apply the rule which confines the powers of a magistrate to those actually conferred to conclude that such a court is without jurisdiction to adjudicate a misdemeanor punishable by imprisonment in the penitentiary. That power rests solely in the circuit court which has both concurrent original jurisdiction in cases of misdemeanor as well as exclusive original jurisdiction to impose punishments as in cases of felony.

Two conclusions follow: First, the information before Magistrate Berrey charged a misdemeanor not subject to a plea of former jeopardy; therefore the threat by the court to dismiss the proceeding on that ground was without warrant in law. Second, the information charged a misdemeanor under § 561.415 punishable by imprisonment in the penitentiary and so was beyond the competence of the magistrate to adjudicate; therefor the court was otherwise without authority altogether to proceed on that formal accusation.

The question of remedy remains. Our preliminary rule in prohibition issued on a petition which besought us to enjoin the magistrate from the manifestly unlawful decision to dismiss the information because of former jeopardy. The relator here did not await the imminent dismissal and then attempt appeal but rather sought relief by extraordinary remedy. An appeal lies to the State from a dismissal of a criminal proceeding, but only on the terms prescribed by statute. Rule 28.04— which promulgates §§ 547.200 and 547.210 —provides that

The state shall be entitled to take an appeal in the following cases and in no others:
(a) when, prior to judgment, upon motion or upon the court’s own view, it is adjudged that an indictment or information is insufficient . ...

This procedure — which is strictly construed — confines appeal only to a dismissal for defect and insufficiency on the face of an indictment or information, and not because of matters dehors the record. State v. Brooks, 372 S.W.2d 83, 85[1] (Mo.1963); State v. Clipper, 142 Mo. 474, 44 S.W. 264 (1898). It is apparent that a plea of former jeopardy relates to matters beyond the record and so a dismissal on that ground does not give rise to an appeal by the State under Rule 28.04. This is not to say that the State must go without remedy altogether.

In circumstances closely analogous to those we consider, review by extraordinary remedy was allowed from a dismissal of an information where an appeal was not available to the State. State ex rel. Corcoran v. Buder, 428 S.W.2d 935 (Mo.App.1968), an information was dismissed on the due process ground that the defendant had not been given a speedy trial. In the proceeding brought in mandamus to reinstate the information the respondent contended that the remedy for the State, if at all, was by appeal. The court concluded, however, that the remedy by appeal was not only inadequate but altogether unavailable to the State because the dismissal was for matters not on the face of the information. The court by peremptory writ of mandamus directed the dismissal vacated and the information reinstated.

Our preliminary rule in prohibition issued because appeal is not available to the State from the dismissal of an information for an error beyond the face of the accusation. Appeals by the State in criminal cases are made exceptional because they tend to threaten the policy which sustains the double jeopardy principle. Will v. United States, 389 U.S. 90, 96, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967). Our grant of extraordinary remedy to allow review to the State where appeal is unavailable — in these circumstances — does not menace the rationale which restricts appeal by the State. The defendant has not hitherto been put to trial before the trier of facts nor subjected to the risk of a determination of guilt. 4 Wharton on Criminal Procedure § 639 (1976).

Accordingly, our preliminary rule in prohibition which restrains the respondent Magistrate in cause No. C-15114, State of Missouri v. Billy E. Mitchell, from dismissal of the information on the ground of former jeopardy is made absolute and the respondent Magistrate is also absolutely prohibited from any further proceeding in the premises except to dismiss the information on the motion of the State.

All concur.


text:
    STATE of Missouri ex rel. FARMLAND INDUSTRIES, INC., Relator, v. Honorable Kenneth ELLIOTT, Judge of the Circuit Court of Clay County, Missouri, Division Two, Respondent.
    No. KCD 29660.
    Missouri Court of Appeals, Kansas City District.
    Dec. 5, 1977.
    Motion for Rehearing and/or Transfer Denied Dec. 27, 1977.

      Robert B. Best, Jr., Kansas City, for relator; Watson, Ess, Marshall & Enggas, Kansas City, of counsel.
    Bernard L. Balkin, Keith E. Witten, Kansas City, for respondent.
    Before SWOFFORD, C. J., and SHAN-GLER, DIXON, PRITCHARD, WASSER-STROM, SOMERVILLE and TURNAGE, JJ.
   WASSERSTROM, Judge.

Before the respondent Circuit Judge, plaintiff Farmland Industries, Inc. sued defendant Lyle Farms, Inc. for damages arising from alleged breach of contract and it also sued the defendants Harry M. Jones and Sally V. Jones for damages under their agreement to guarantee performance by Lyle Farms. “Long arm” service was obtained on all three defendants under Section 506.500 RSMo 1969. Defendants filed motions to quash service on the ground that none of them transacted any business in the State of Missouri and none of them had entered into any contract in this State. Defendants also filed a motion to stay proceedings until a certain pending action in the United States District Court of New Jersey could be finally disposed of and determined. After the filing of affidavits and the taking of testimony, respondent sustained defendants’ motion to quash summons and service of process and on his own motion dismissed Farmland’s petition on the grounds of forum non conveniens. Farmland thereupon filed a petition as relator in this court for a writ of mandamus to reinstate the petition and service of process, and a preliminary writ was issued. That preliminary writ is now made peremptory.

The skeletal facts are as follows. Harry M. Jones and his wife Sally V. Jones are both residents of New Jersey. They are the principal stockholders and he is the managing officer of a number of corporations, including Lyle Farms (the corporate defendant involved here) and Lyle Foods, Inc., both of which are New Jersey corporations and neither of which maintains any office in the State of Missouri. Farmland is a Kansas corporation with its principal office and place of business in Kansas City, Missouri.

In 1974, Farmland and one of its subsidiaries entered into a contract with Lyle Foods under which the latter undertook distribution of Farmland’s line of “frozen food entrees.” The two Jones guaranteed performance of that distribution contract by Lyle Foods. Then, about a year later, in 1975, Farmland entered into a new Marketing Agreement with Lyle Farms under which the latter corporation undertook the distribution of Farmland’s line of dry dog food, and the two Jones executed a separate guarantee of that agreement. Both the dog food Marketing Agreement and the guarantee of it bore date of March 6, 1975. There is sharp disagreement between the parties as to whether the last signature to these agreements was affixed in New Jersey or in Missouri.

Disputes later arose between the parties which led to the filing of a lawsuit by Lyle Foods concerning the frozen food entree distribution agreement in the United States District Court for the District of New Jersey on July 30, 1976. Farmland and its subsidiary filed answer and counterclaim over the same distributorship in the New Jersey federal court and then in the following month filed suit on the same subject matter against Lyle Foods and the two Jones in the United States District Court for the Northern District of Illinois. Other facts important to the decision of this case will be stated at later appropriate points in this opinion.

Farmland’s Points Relied On in this court may be summarized thus: (1) Respondent improperly quashed service on Lyle Farms because that defendant both transacted business (Point I) and made a contract (Point II) within Missouri. We hold that Lyle Farms did transact business in Missouri and therefore find it unnecessary to decide Farmland’s Point II. (2) Respondent improperly quashed service on the individual defendants because they transacted business (Point III) and made a contract (Point IV) in Missouri. We hold that the individual defendants transacted business in Missouri and therefore find it unnecessary to decide Farmland’s Point IV. (3) Respondent improperly dismissed the petition on the grounds of forum non conveniens because he had already divested himself of jurisdiction by sustaining defendants’ motion (Point VI) and because the doctrine cannot lawfully be applied to this factual situation (Point VII). We sustain Point VII and therefore find it unnecessary to rule on Farmland’s Point VI. (4) Mandamus is an appropriate remedy with respect to the order to quash service (Point V) and as to the order dismissing the petition on the ground of forum non conveniens (Point VIII). These points can be bypassed for the reason to be stated below.

I.

Transaction of Business in Missouri by Lyle Farms

Defendants challenge all of Farmland’s Points except its Point I. This can be taken as an implied concession by them that the corporate defendant did transact business within Missouri under the provisions of Section 506.500-1(1).

However that may be, Lyle Farms clearly did transact business within the meaning of that statutory provision. Defendant Harry M. Jones testified that the first discussion with respect to him or any enterprise controlled by him undertaking distribution of dog food occurred in Kansas City, Missouri, on about June 24, 1974. On at least seven other occasions thereafter he and sometimes other representatives of Lyle Farms came to Kansas City to further negotiate concerning this projected distributorship. These meetings were followed by correspondence, all of which eventuated in the Marketing Agreement dated March 6, 1975, now in suit. Any one of the eight conferences mentioned would alone have sufficed to constitute the transaction of “any” business in Missouri sufficient to sustain long arm service. State ex rel. Peoples Bank v. Stussie, 536 S.W.2d 934 (Mo.App.1976); J. F. Pritchard & Co. v. Dow Chemical of Canada, Ltd., 331 F.Supp. 1215 (D.C.Mo.1971); American Hoechst Corp. v. Bandy Laboratories, Inc., 332 F.Supp. 241 (D.C.Mo.1970). Additionally, some of the work under the contract was done by Farmland in Missouri, and payments were sent by Lyle Farms to Farmland in Kansas City, Missouri. These are further factors to support the conclusion that Lyle Farms transacted sufficient business in Missouri to support service. J. F. Pritchard & Co. v. Dow Chemical of Canada, Ltd., supra.

II.

Transaction of Business in Missouri by the Individual Defendants

The individual defendants seek to distinguish their status from that of the corporate defendant, on the grounds that the individuals were not parties to the Marketing Agreement, but only to the guarantee. They argue that the evidence with respect to negotiations in Missouri relates only to the distribution agreement and that there is no evidence that any negotiations occurred in Missouri with respect to the guarantee.

This attempted distinction is utterly unrealistic. The Marketing Agreement and the guarantee were interrelated aspects of an integrated transaction. The guarantee would never have been executed had the Marketing Agreement not been agreed upon. Therefore, negotiations for the Marketing Agreement necessarily “contributed to the consummation and execution of” the guarantee. J. F. Pritchard & Co. v. Dow Chemical of Canada, Ltd., supra at page 1219.

Defendant Sally V. Jones further attempts to distinguish her situation from that of her husband on the ground that she personally was never in Missouri and there is no evidence of agency on her behalf by her husband or any other representative of Lyle Farms who did come to Missouri for negotiations. ' The failure of Sally to be personally present in Missouri and the absence of advance agency on her behalf by those who did come to Missouri is all beside the point. The important fact is that the acts of her husband and other corporate representatives led up and contributed to the consummation of the Marketing Agreement and the related guarantee, and the latter document was signed freely and voluntarily by Sally. These documents and the transaction represented by them put her into position to reap benefits as a major stockholder of Lyle Farms. By executing the guarantee agreement, she adopted and ratified the negotiations which led up to it. State ex rel. Peoples Bank v. Stussie, supra.

III.

Application of forum non conveniens

The doctrine of forum non conven-iens is to be applied only with caution; and unless the balance of equities is strongly in favor of not forcing these defendants to trial in Missouri, Farmland’s choice of Missouri as the forum for this litigation should not be disturbed. Loftus v. Lee, 308 S.W.2d 654 (Mo.1958); Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947); J. F. Pritchard & Co. v. Dow Chemical of Canada, Ltd., 462 F.2d 998, 1000 (8th Cir. 1972).

Although Farmland is a Kansas corporation, its principal office and place of business is in Kansas City, Missouri, and in that real sense it is a resident of Missouri. Moreover, the Marketing Agreement contains a provision that its terms “shall be governed and construed according to the laws of the State of Missouri.” These factors militate heavily against application of the doctrine of forum non conveniens. American Institute of Marketing Systems, Inc. v. Clarke, 469 S.W.2d 937 (Mo.App. 1971); J. F. Pritchard & Co. v. Dow Chemical of Canada, Ltd., district court opinion at l. c. 1222.

The pendency of the litigation in the federal courts of New Jersey and Illinois does not require a different result. Neither of those federal cases includes Lyle Farms as a party. Even more importantly, both of those cases litigate rights and duties under a completely different contract from the one involved here. While the pleadings in the federal courts do make light reference to the dog food distributorship, that reference is purely tangential and is of no real consequence.

The dismissal of Farmland’s petition on the ground of forum non conveniens constituted an abuse of discretion.

IV.

Propriety of Remedy by Mandamus

Defendants argue that Farmland has an adequate remedy by appeal and that therefore remedy by mandamus does not lie. Whatever the merits of that argument academically, it has no bearing at this late stage of these proceedings. This court has already issued its alternative writ, the issues have been fully briefed and argued and it would be wasteful of judicial resources to decline to proceed to a determination of the merits. State ex rel. Mayweather v. Bondurant, 538 S.W.2d 953, 955 (Mo.App.1976), and cases there cited.

The alternative writ is made peremptory.

All concur.


author: McMILLIAN, Judge.

text:
    Sharon Hartig COOK, Plaintiff-Appellant, v. David T. LODES, Defendant-Respondent.
    No. 38501.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 13, 1977.

      Hollander & Platke, Toby H. Hollander, St. Louis, for plaintiff-appellant.
    Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, R. E. Keaney, St. Louis, for defendant-respondent.
   McMILLIAN, Judge.

Appellant Sharon Hartig Cook appeals from the order of the circuit court of St. Louis County sustaining in part her motion to modify the original divorce decree which awarded custody of her minor child to respondent.

In this court-tried case, the order of the trial court will be sustained unless there is no substantial evidence to support it or is against the weight of the evidence or erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32[1] (Mo. banc 1976). We set aside a decree as against the weight of the evidence only “with a firm belief that the decree is wrong.” Murphy v. Carron, supra, at 32[2]. We also give due deference to the trial court’s opportunity to have judged the credibility of the witnesses.

Appellant and respondent, David T. Lodes, were divorced on February 28, 1974. Appellant did not contest the divorce, nor did she request custody of the parties’ six-year old son, David Louis Lodes (hereinafter referred to as “Louis”). Apparently appellant consented to respondent’s custody of Louis. The divorce decree reflected the wishes of the parties.

Shortly after the divorce both parties remarried. Appellant and her new spouse have no children. Appellant was employed as a waitress at a St. Louis restaurant at the time of the divorce. Respondent’s new wife, the now Donna Lodes, had one child from a previous marriage. Since their marriage respondent and his new wife also have a child of their own.

Subsequent to the divorce, Louis spent a good deal of time with the appellant. In fact, from late November, 1974 to May, 1975, Louis attended school while living with the appellant. Apparently respondent would see Louis on weekends and holidays. In May, 1975, Louis returned to the custody of the respondent.

During the following school year, commencing in September of 1975, Louis attended St. Pius grammar school while living with the respondent. Appellant would spend time with Louis on weekends and holidays.

In April, 1976, appellant filed her motion to modify the divorce decree with regard to the custody provisions of Louis. Appellant alleged “a substantial change in circumstances indicating that the best interests of the child would be served by awarding the care, custody and control of the minor child, David Louis Lodes, to the petitioner.” In her motion to modify, appellant set out five bases which allegedly reflect a change in circumstances:

“a. Petitioner has remarried, has obtained steady employment, and is capable of providing for the health, care, education and rearing of said child;
“b. Respondent has remarried but said marriage is fraught with domestic quarrels and bitterness, disturbing the peace and tranquility of the home;
“c. The minor child is not receiving proper dental care;
“d. The minor child is not being adequately clothed;
“e. Respondent has had periodic bouts of alcoholism, requiring the care, custody and control of said minor child to be given to Petitioner for periods of two weeks and six months, disrupting the stability of the minor child’s life;
“f. As a result of the aforesaid circumstances, the mental and emotional well-being of said child has been and is being seriously jeopardized.”

Prior to the hearing on the motion to modify the divorce decree, appellant picked up Louis for her periodic visit. The appellant noticed an abrasion on his face. After further examination, appellant took Louis to Cardinal Glennon Hospital for treatment. The treating physician recorded the injuries, and filed a child abuse form.

Appellant then refused to relinquish custody of Louis to the respondent. Respondent proceeded to file a writ of habeas corpus. A show cause order was issued on June 8, 1976. Appellant appeared with Louis and a hearing was held on the writ. The circuit court of the City of St. Louis denied the writ stating that in view of the pending motion to modify, it was in the best interest of the child to remain in the temporary custody of the appellant.

The hearing on the motion to modify commenced on August 17, 1976, with continuations on September 3 and September 7. The voluminous record reflects substantial conflicting testimony.

The appellant proffered testimony relating to the well-being of Louis. She described his negative attitude about his stepmother and alleged physical abuse by her. Appellant contended that Louis was not receiving proper dental care, but admittedly did nothing to remedy the situation while she had temporary custody of Louis.

Dr. Pamela Beach, treating physician at Cardinal Glennon Hospital, testified to Louis’ condition when appellant brought him in for treatment. The doctor classified his injuries as “clean injuries, they didn’t need washing or bandaging,” and described his character as cheerful, “a normal child.”

Dr. Neil Stephan Alex, child psychiatrist at Washington University Child Guidance Clinic, testified to the examination of Louis. Dr. Alex stated that Louis had a “reactive disorder” apparently stemming from the treatment of his stepmother.

David Louis Lodes testified in chambers after being qualified by the court. He described his negative attitude towards his stepmother including being slapped. Louis stated, however, a preference to be with his father if his stepmother would change, and wished to “see if Donna (his stepmother) has changed.” Louis expressed some enjoyment in being with his father and attending the school that he attended while living with respondent.

Respondent testified to his drinking problem while married to the appellant. He did state, however, that since December 12, 1974, he has not had a drink. Respondent expressed an interest in Louis’ educational progress, and on at least one occasion visited the school which Louis attended to have a conference with his teacher. Respondent testified to the sporadic visitation habits of the appellant, stating that at one time there was a three to four month gap in her visits. Respondent testified further that he occasionally punished Louis for lying.

Donna Lodes, respondent’s present wife, testified that she cared a great deal for Louis. She admits, however, strapping him with a belt. Mrs. Lodes also testified that she has occasional arguments with the respondent, but no physical abuse is involved. Mrs. Lodes also admitted to slapping Louis on at least one occasion.

Testimony was also offered by Sister Eileen Kersigieter, principal at St. Pius grade school, and Jane Holdsworth, Louis’ teacher. Both noticed improvement in Louis’ academic ability after the year in St. Pius. In fact, Mrs. Holdsworth commented that Louis was doing very good work.

After hearing all the testimony, the trial court sustained appellant’s motion in part, by delineating specific time periods which appellant would have custody of Louis. This appeal followed.

Appellant raises several issues on appeal, some of which are not set out in her points relied on. See Rule 84.04(d) and Wright v. Poelker, 548 S.W.2d 285 (Mo.App.1977). In fact, appellant’s brief is in questionable compliance with Rule 84.04(d). Appellant has failed to frame her “points relied on” in a manner that informs this court of “wherein and why” the trial court erred. Therefore, we see fit to consider only one issue raised by appellant — the trial court erred in only sustaining in part the appellant’s motion to modify the divorce decree. Put in different terms, the trial court erred in not sustaining appellant’s entire motion to modify the divorce decree in that the court’s order was not supported by substantial evidence.

In order to modify a custody decree, the court must find that: (1) facts arising since the prior decree have given rise to a change in circumstances of the child, or his custodian, and (2) a modification is necessary to serve the best interests of the child. § 452.410, RSMo Supp. 1973. In a child custody case, the party moving to modify child custody has the burden of showing a change in circumstances to warrant the transfer of custody. L.H.Y. v. 535 S.W.2d 304 (Mo.App.1976). In such a proceeding to change custody the wishes of the child are relevant and should be considered by the court, if it is determined that an interview with the child is appropriate. § 452.385, RSMo Supp. 1973. Kanady v. Kanady, 527 S.W.2d 704 (Mo.App.1975). Stability of the child is an important factor to be considered in deciding custodial issues. In re Marriage of Roedel, 550 S.W.2d 208 (Mo.App.1977).

We have reviewed the record carefully and conclude that there is substantial evidence to support the order of the trial court. It is important to keep in mind that the trial court sustained in part appellant’s motion to modify in setting out specific temporary custody rights of the appellant. To this extent, the trial court treated appellant’s motion as one to increase visitation, as well as change in permanent custody. By not granting the appellant’s entire motion, the trial court apparently did not consider the facts presented as warranting a change in permanent custody.

In reaching our decision, we take note of Louis’ express desire to live with his father (respondent), and give his stepmother a second chance. Also Louis’ progress in school, and his father’s interest therein are factors deserving credence. The record contains conflicting evidence in many respects, not clearly supporting either party. Therefore, we are unable to agree with appellant’s contention that there is no substantial evidence to support the court’s order.

Accordingly, judgment is affirmed.

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


text:
    Conrad Justin ADKINS, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 38619.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 13, 1977.

      William J. Shaw, Public Defender, William B. Haller, Asst. Public Defender, Clayton, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Carson Elliff, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Steve Golden, Asst. Pros. Atty., Clayton, for respondent.
   CLEMENS, Presiding Judge.

Petitioner Conrad J. Adkins, previously convicted of five felonies on his pleas of guilty, appeals from the trial court’s denial of his second motion under Rule 27.26, VAMR. We affirm the denial in accordance with Rule 27.26(d) because petitioner has failed to sustain his burden of demonstrating “any new ground raised in a second motion [that] could not have been raised by him in the prior motion.” We consider, however, petitioner’s specific points relied on.

Petitioner’s first point is that the court erred in denying his second motion because it failed to make findings of fact and conclusions of law as prescribed by Rule 27.26(i). The trial court judgment referred to denial of the first motion and then denied the second motion on the specific ground it failed to comply with Rule 27.-26(d) prohibiting “successive motions.” This was tantamount to a finding of fact that petitioner had filed a prior motion and a conclusion of law that Rule 27.26(d) mandates the denial of the second motion. It was so held in Smith v. State, 513 S.W.2d 407[7] (Mo.1974).

Petitioner’s second point is that the trial court erred in failing on its own motion to appoint counsel for him on the second motion. Subsection (h) of Rule 27.26 does not require appointment of counsel on a second motion when the record, as here, shows the grounds asserted were known or could have been known by petitioner when he filed a prior motion. Duisen v. State, 504 S.W.2d 3[1] (Mo.1974).

In his third point relied on petitioner contends “The trial court erred in dismissing the movant’s request for relief without a hearing wherein the movant alleges his attorney failed to investigate his case and interview witnesses prior to trial, thus rendering movant without effective assistance of counsel.” Rule 84.04(d) requires that “The points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous.” Because his point relied on fails to state why the court erred in overruling his second motion, he has failed to “isolate and formulate the precise issues to be reviewed,” as required, so that point has not been preserved for review. State v. Morrow, 541 S.W.2d 738[4, 5] (Mo.App.1976). Aside from this formalistic deficiency, the point is without merit. As ruled in Smith v. State, 513 S.W.2d 407[2] (Mo.1974): “His allegations that his attorneys did not investigate all possible defenses is not sufficient to warrant relief because he does not allege what defenses were available and likely would have been discovered if further investigation had been made.”

Since petitioner was not represented by counsel until this appeal was taken, on our own motion we have reviewed the record for plain error under Rule 84.13(c) and find no manifest injustice or miscarriage of justice.

SMITH and McMILLIAN, JJ., concur.

      . The trial court denied petitioner’s first motion because it was conclusory and contravened by the guilty plea record.


author: TITUS, Judge.

text:
    STATE of Missouri, Respondent, v. Andre Lamont MACKLIN, Appellant.
    Nos. 10732, 10864 and 10866.
    Missouri Court of Appeals, Springfield District.
    Dec. 15, 1977.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Scott B. Tinsley, Anderson & Tinsley, Springfield, for appellant in 10732.
    David R. Fielder, Hamra & Fielder, Springfield, for appellant in 10864.
    John S. Pratt, Springfield, for appellant in 10866.
   TITUS, Judge.

On July 1, 1977 (Case No. 10732) defendant was sentenced upon conviction of second degree burglary and stealing. On November 23,1977 (Case No. 10864) defendant was convicted of two counts of first degree robbery by means of a dangerous and deadly weapon, and on November 29, 1977 (Case No. 10866) defendant was sentenced upon conviction of breaking custody. He timely appealed from these judgments of conviction and those appeals are now pending in this court.

Defendant did not make bond pending appeal in any of these cases. On December 9, 1977, defendant was killed while in the custody of the Department of Corrections. Having expired before the above enumerated charges against him were finally determined, the prosecutions against defendant wholly abated and there was no conviction of him in any of the causes within the contemplation of the law. City of Clayton v. Sigoloff, 452 S.W.2d 315 (Mo.App.1970); Scott v. American Express Co., 233 S.W. 492 (Mo.App.1921), cert. quashed State ex rel. Scott v. Cox, 243 S.W. 144 (Mo.1922); Baker v. Modern Woodmen of America, 140 Mo.App. 619, 121 S.W. 794 (1909); 83 A.L.R.2d 864, et seq.; Annot., Criminal Case-Death Pending Appeal.

During his lifetime, defendant was never finally convicted of the crimes charged and his death served to abate the prosecutions against him. Consequently, this court has no viable cause before it and the appeal in each involved case is hereby dismissed.

It is so ordered.

All concur.


author: PER CURIAM:

text:
    STATE of Missouri, Plaintiff-Respondent, v. Thomas Clifford RIDEEOUTTE, Defendant-Appellant.
    No. 10724.
    Missouri Court of Appeals, Springfield District.
    Dec. 15, 1977.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Lloyd R. Henley, Springfield, for defendant-appellant.
   PER CURIAM:

Appellant was found guilty of burglary in the second degree and stealing by a Greene County jury on June 8, 1977. Appellant was thereafter sentenced to two-year terms of confinement for each crime. The trial court specified that said sentences were to be served consecutively.

The parties to the appeal have approved the transcript and affixed their signatures thereto. Rule 81.12(c), V.A.M.R., authorizes approval of the transcript on appeal when said transcript correctly reflects all the requisite record of the cause. The instant transcript is deficient in that it contains a transcribed document styled: “SENTENCE TO DIVISION OP CORRECTIONS ON VERDICT OF JURY”. Said document does not demonstrate the date on which it was entered, assuming, arguendo, that said document was ever entered, upon the records of the circuit clerk contrary to Rule 27.11, V.A.M.R.

Were it not for the provisions of Rule 27.11, this court might assume that the task required by said rule had been accomplished but merely omitted from the record. Nevertheless, it is essential that the judgment entry and the date said entry was made be preserved and shown by the record. Therefore, we hold the appeal in abeyance and remand the cause for supplementation of the record. State v. Pogue, 552 S.W.2d 75 (Mo.App.1977).

It is so ordered.

All concur.


author: TURNAGE, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Sidney Neal OLSON, Appellant.
    No. KCD 28862.
    Missouri Court of Appeals, Kansas City District.
    Dec. 5, 1977.
    Motion for Rehearing and/or Transfer Denied Dec. 27, 1977.
    Application to Transfer Denied Feb. 8, 1978.

      Clifford A. Cohen, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WASSER-STROM and SOMERVILLE, JJ.
   TURNAGE, Presiding Judge.

Sidney Neal Olson was charged with murder in the second degree in one count and assault with intent to do great bodily harm with malice in a second count. He was convicted of murder in the second degree by a jury and sentenced to twenty years confinement. He was acquitted of the assault charge.

On this appeal he alleges error in failing to strike the jury panel because the law in Missouri systematically excludes women from jury service, in failure to give MAI-CR 2.70, and in a reference to an admission contained in the prosecutor’s opening statement. Affirmed.

Olson does not challenge the sufficiency of the evidence to support his conviction. A jury could reasonably have found Olson went to a bar with a .25 caliber automatic pistol in his pocket. At the bar he engaged in conversation with Paul Dorland and Larry Dorland, Paul’s son. In the conversation with the Dorlands, and with two other men, an argument erupted concerning certain events connected with World War II. After some heated discussion, Olson announced he had a pistol and would shoot the first man who stood up. Paul Dorland stood up and was struck by two bullets fired by Olson and died. Larry Dorland was also struck by bullets from Olson’s gun.

Olson first contends the Missouri jury selection system which allows women to be excused from service is unconstitutional and by reason thereof he was denied his right to be tried by a jury representative of a cross section of society. The constitutionality of the Missouri exemption granted to women in Article I, Section 22(b) of the Missouri Constitution, and by § 494.-031(2), RSMo 1975 Supp., was upheld in State v. Duren, 556 S.W.2d 11 (Mo. banc 1977), decided September 27, 1977. The remaining question is whether the evidence shows that the selection process of juries in Jackson County resulted in jury venires not “representative of the community” and “almost totally male” as those constitutional standards were delineated in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975).

The court in Duren found the composition of jury venires in Jackson County for the period of June to October, 1975, complied with the constitutional mandate of Taylor. The evidence in this case is for the same county and for the same period of time. For that reason it may not be said in this case Olson was denied a jury venire of constitutional composition.

Olson next claims error in the failure of the court to give MAI-CR 2.70. The Notes on Use following this instruction state that one of the group of instructions from MAI-CR 2.70 to 2.77 should be read to the jury in every case where multiple counts are involved. The note states these instructions are designed to make it clear each count must be considered separately.

Separate verdict director instructions were submitted covering the charge of murder and the charge of assault, each containing the instruction to acquit if the jury did not find and believe every submitted element. In addition, the issues were isolated by separate verdict forms for the murder and assault charges. To demonstrate beyond doubt the jury did, in fact, separate the charges in this case is the action of the jury which found Olson guilty on the murder charge but which found him not guilty on the assault charge.

In State v. Minor, 556 S.W.2d 35 (Mo. banc 1977), decided September 27, 1977, the court considered a claim of error on the failure to give MAI-CR 2.70. There the jury had sent a question to the judge which indicated it was considering the two charges separately. The court stated, “The purpose of MAI-CR 2.70 to assure that the jury, in reaching its verdict, applies the law and evidence to each charge independently, was fulfilled. The state has shown by the record and reasonable inferences therefrom that no prejudice occurred and we find the error harmless.” The same result follows in this case. When the jury acquitted Olson on the assault charge, it removed any question as to prejudice from the failure to give MAI-CR 2.70.

Olson finally contends the court erred when the prosecuting attorney stated in his opening statement that the evidence would show Olson said after his arrest he intended to shoot the old man, but didn’t intend to shoot the boy. Olson couples this statement by the prosecutor with the failure of the court to hold a hearing prior to trial on the voluntary nature of the statement, pursuant to Olson’s request. The court did hold a hearing as to the voluntary nature of Olson’s statement when the statement was sought to be introduced. At the conclusion of this hearing, the court ruled the statement was inadmissible, and, of course, the statement was not thereafter introduced as evidence.

When the prosecutor in his opening statement told the jury he had made the statement attributed to him, no objection was made. Neither was any objection made to the holding of the hearing as to the voluntary nature of the statement during the trial rather than prior to trial. Thus, the opening statement and the hearing on the voluntary nature of the statement occurred without any objection on the part of Olson. It is settled that objection must be made to an opening statement at the time the offensive statement is made to preserve the point for review. State v. Robb, 439 S.W.2d 510, 514[6-8] (Mo.1969). Here, Olson is essentially complaining of this statement by the prosecutor which he contends presented evidence to the jury to show he intentionally shot the old man. However, absent any objection to this statement, no claim of error has been preserved. In addition, Olson seeks to compound his claim of error by complaining as to the time of the hearing on the voluntary nature of the statement. Likewise, no claim of error has been preserved because no objection was made during the trial on this ground.

In addition, the court gave MAI-CR 2.02, which told the jury the opening statements of attorneys are not evidence. This instruction had been read to the jury immediately prior to the prosecutor’s opening statement.

The judgment is affirmed.

All concur.


author: W. E. QUICK, Special Justice.

text:
    Billy W. KELLEY, d/b/a Plaza Auto Sales, Appellant, v. O. L. McLEMORE and wife, Mary E. McLemore, et al., Appellees. Tony CHUOKE, Appellant, v. O. L. McLEMORE and wife, Mary E. McLemore, et al., Appellees.
    Court of Appeals of Tennessee, Western Section.
    July 29, 1977.
    Certiorari Denied by Supreme Court Dec. 12, 1977.

      James A. Hopper, Savannah, for appellant Billy W. Kelley, d/b/a Plaza Auto Sales.
    John J. Ross, Jr., Savannah, for appellant Tony Chuoke.
    W. Lee Lackey and W. W. Lackey, Savannah, for Dan J. Curtis for benefit of Citizens Bank.
   W. E. QUICK, Special Justice.

This appeal from the decree of the Chancery Court of Hardin County, Tennessee, involves: (1) priority of judgment liens as between two judgment creditors, (2) allocation of proceeds of court sale as between Trustee under prior deeds of trust and the subsequent judgment creditors, and (3) allowance of attorney fee to Trustee.

On July 17,1974, appellant, Billy W. Kelley, d.b.a. Plaza Auto Sales, hereinafter referred to as the Tennessee Creditor, obtained judgment in the Chancery Court of Hardin County against O. L. McLemore and wife, Mary McLemore, owners of the real property here involved, in the sum of $13,-800.00 and costs.

On August 19, 1974, the said Tennessee Creditor filed a judgment lien in the Register’s Office of Hardin County in accordance with the provisions of Tennessee Code Annotated, Section 25-503.

On March 6, 1975, an execution was issued by the judgment creditor with teste date fourth Monday in October 1974. On April 28, 1975, return was made, “No property to be found of the defendants.”

On May 13, 1975, suit was filed by the Tennessee Creditor in the Chancery Court for Hardin County seeking equity to satisfy its judgment by subjecting McLemore’s equity in three tracts of land to court sale in satisfaction of the judgment.

The other judgment creditor, Tony Chuoke, hereinafter referred to as the Texas Creditor, by invoking the Long Arm Statute, first filed suit in the District Court of Dallas, Texas, and on May 30, 1974, obtained judgment against the McLemores in the sum of $16,000.00 and costs.

Thereafter, on July 1, 1974, the Texas Creditor filed suit on the Texas judgment in the Chancery Court of Hardin County, Tennessee, and on January 14,1975, obtained judgment in the same amount, to-wit, $16,000.00, plus interest from May 30, 1974, (date of the Texas judgment).

On January 16, 1975, a certified copy of the judgment was filed of record in the Register’s Office of Hardin County, Tennessee.

Execution was issued on that judgment on May 8, 1975, and returned nulla bona on May 9, 1975.

Coincidentally, the Texas Creditor filed suit seeking satisfaction of its judgment from McLemore’s equity in the same real property on the same day and in the same Court as had the Tennessee Creditor.

Writs of attachment were issued by the Clerk and Master in both eases at 2:45 p.m. on May 15,1975, and in the Tennessee Creditor case the attachment was levied by the Sheriff on May 15, 1975 at 2:45 p.m., and immediately thereafter, at 2:46 p.m. attachment was levied by the Sheriff in the Texas Creditor case.

In Memorandum Opinion filed by the learned Chancellor, he commented on the fact that both judgment creditors filed suit for attachment on the same day (May 13, 1975), and that attachments were levied on the property within one minute of each other on May 15, 1975. He then made the further observation:

“Why was one attachment levied prior to the other? The attorneys had no control over this act. This is the function of the Court, therefore server of process must treat this sale and distribution of the funds as if it were a suit by general creditors, and prorata the assets of the insolvent debtor. The land was brought before the Court at the same time the land was sold for both creditors, both attorneys performed in an excellent manner and the Court therefore is of the opinion that the judgment creditors should share in the goods and losses on a prorata basis.”

The Chancellor accordingly decreed distribution of the proceeds of sale on a pro rata basis.

The Chancellor further held that the judgment creditors, through their attorneys of record, had entered into an agreement with the Trustee for the Citizens Bank of Savannah, Tennessee, which Bank held first liens on the property, that the property could be sold free of such liens, and that the Bank’s indebtednesses would first be paid out of the proceeds of sale, and the Court so held in the distribution of the proceeds of sale.

The Chancellor further held that the attorney for the Trustee was entitled to a fee in the amount of $200.00, to be paid out of the proceeds of sale.

To the decree of the Trial Court, Tennessee Creditor has assigned error as follows:

I

That the Chancellor erred in decreeing a pro rata distribution of the proceeds of sale as between the two judgment creditors, and failing to hold that the judgment lien of Billy W. Kelley, the Tennessee Creditor, was superior to and had priority over that of Tony Chuoke, the Texas Creditor.

II

That the Chancellor erred in allowing full recovery to the Trustee for the Citizens Bank of Savannah, Tennessee, rather than limiting recovery to the proceeds of sale of each separate tract of land covered by the respective deed of trust.

III

That the Chancellor erred in allowing a fee to the Trustee’s attorney.

With respect to Assignment I, it would appear from conclusions expressed in the Memorandum Opinion herein referred to the Chancellor in decreeing a pro rata distribution of the proceeds of sale as between the Tennessee and Texas Creditors was apparently of opinion the issuance of attachments and levying of the same by the Sheriff was determinative of the question of priority of liens. In this we cannot agree.

It is conceded, of course, that a judgment, in and of itself, does not create a lien against an equitable interest in real property. Huffaker v. Bowman (1856), 36 Tenn. 89, 98; Chumbley v. Carrick (1953), 194 Tenn. 612, 254 S.W.2d 732.

But Section 25-503 Tennessee Code Annotated very specifically outlines the procedure to be followed in order to successfully establish a judgment lien against an equitable interest in real estate. We quote the Code Section, as amended:

“25-503 — EQUITABLE INTERESTS — A judgment or decree shall not bind the equitable interest of the debtor in real estate or other property until a memorandum or abstract of the judgment or decree, stating the amount and date thereof, with the names of the parties is certified by the clerk and registered in the register’s office of the county where the real estate is situated.”

Section 25-505 then proceeds to set forth the procedure to be followed in preserving and enforcing the lien thus created:

“25-505 — BILL TO SUBJECT INTEREST — In both cases of realty and personalty, the lien shall cease, unless a bill in equity, to subject said interest, is filed with thirty (30) days from return of the execution unsatisfied.” (Italics ours)

It seems apparent, therefore, that it is the filing of a certified copy of the judgment, or memorandum thereof, in the Register’s Office, as required by T.C.A. 25-503, which establishes the lien against an equitable interest in real estate. And it seems significant that reference is made to the fact that the lien shall cease, unless the provisions of Section 25-505 are complied with.

It is stipulated that the Tennessee Creditor has complied with each of these provisions of the Code by filing a certified copy of his judgment in the Register’s Office; that he filed suit to subject the equitable interest to satisfaction of his judgment lien within thirty (30) days from return of execution unsatisfied, and attachment was levied on the land for sale on May 15, 1975, within twelve (12) months after rendition of his judgment.

On the other hand, the Texas Creditor obtained judgment first in Texas on May 30, 1974, and in Tennessee on January 14, 1975, but it was not until January 16, 1975, that a certified copy of his judgment was filed of record in the Office of the Register of Hardin County. In point of time this was some five months following the filing of judgment by the Tennessee Creditor.

If the registering of judgment in the Register’s Office, as provided in T.C.A. 25-503, is determinative on the question of priority of liens, as indeed we think it is, then clearly, the judgment lien of the Tennessee Creditor is superior to that of the Texas Creditor. This assignment is accordingly sustained, and the Chancellor’s holding in this particular is reversed.

Assignment of Error II complains of the action of the Chancellor in allowing full recovery to the Trustee for the Citizens Bank of Savannah out of the proceeds of sale of the two tracts of land upon which the Bank held separate deeds of trust. In doing so, it appears the Chancellor relies upon what he found to be an agreement between counsel for the two judgment creditors and counsel for the Trustee to the effect that the property could be sold free of encumbrances, and that the indebted-nesses owing the Bank would be first paid in full out of the total proceeds of sale, rather than limiting recovery to the proceeds of sale of each particular tract covered by the particular deed of trust.

It is noted that the decree of sale entered January 5, 1976, and approved by all counsel of record contains the following provisions:

- _ and it further appearing to the Court that the Citizens Bank of Savannah, Tennessee, holds Deeds of Trust to said property, securing promissory notes of the Defendant, Mary E. McLemore, to it, and that by agreement the Citizens Bank and the Plaintiffs desire that said property be sold free of said encumbrances, and that the obligations of Defendants to said Bank be first paid out of the proceeds of sale.” (Italics ours)

And quoting further from the decree:

“And on the special application of the Plaintiffs, both in their Complaints and at the bar, that said land be sold on a credit and in bar of all right of redemption, said sale will be made on the credit aforesaid, and when made and confirmed by the Court no right of redemption or repurchase shall exist in the Defendants or in any of their Creditors, but the title of the Purchaser shall be absolute. From the first monies received from said sale the indebtednesses to the Citizens Bank will be satisfied, and the balance of any proceeds will be used for the satisfaction of the Judgments of the Plaintiffs as stated above, and any proceeds over and above what is necessary to pay the Plaintiffs’ debts and Costs of these actions will be paid to the Debtor, or as otherwise ordered by the Court.” (Italics ours)

We believe these provisions in the decree of sale, approved by counsel for the two judgment creditors, are sufficient to support an agreement for payment in full of the indebtednesses to the Citizens Bank, and it follows that the judgment creditors are bound by the agreement made by their counsel in the course of this litigation. Pewitt v. Pewitt (1950), 192 Tenn. 227, 240 S.W.2d 521; State, Department of Highways v. Urban Estates, Inc. (1971), 225 Tenn. 193, 465 S.W.2d 357; Lewis & Sons v. Illinois Central R. Co. (1923), 150 Tenn. 94, 259 S.W. 903.

It is further to be noted that in entering into this arrangement the Bank surrendered its right of foreclosure and the opportunity of bidding in a particular tract in satisfaction of its lien.

This Assignment is overruled, and the action of the Chancellor in allowing full recovery to the Bank is affirmed.

With respect to Assignment of Error III, directed to the action of the Chancellor in allowing an attorney fee to the Trustee, we hold this to be error for the reason the only party who could be held liable for attorney fees would be defendants in the cause, as parties to the deeds of trust, and for whom no funds were available out of the proceeds of sale. To hold otherwise in this case would be to require the other judgment creditors to pay the fee out of proceeds of sale available only to them.

This Assignment of Error is accordingly sustained, and the judgment of the Chancellor in allowing the fee is reversed.

The result is that so much of the Chancellor’s decree which ordered a pro rata distribution of the proceeds of the sale and which allowed a fee to the Trustee’s attorney is reversed. Costs of appeal are adjudged against the Texas Creditor, Tony Chuoke.

A decree will be entered in this Court awarding judgment in compliance with this Opinion.

Honorable W. E. Quick, by designation of the Supreme Court of Tennessee, took part in the hearing of this appeal in the absence of Presiding Judge C. S. Carney.

MATHERNE and NEARN, JJ., concur.