text:
    STATE of Missouri, Respondent, v. James A. MOTEN, Appellant.
    No. 28059.
    Missouri Court of Appeals, Kansas City District.
    Aug. 30, 1976.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 12, 1976.

      Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Douglas G. Mooney, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

A Jackson County Circuit Court jury found James A. Moten guilty of robbery in the first degree and fixed his punishment at seven years’ imprisonment. This appeal is from the ensuing judgment and sentence.

On October 4, 1974, at 3:00 P.M., two black males entered the Manor Baking Company Thrift Store on East Highway 40 in Kansas City. They pretended to be customers until other customers left. Then one of the men produced a pistol and told the employee in charge “All right, you know what this is. Don’t move.” He forced the employee, Rhoda Pennington, to the floor, striking her once with the pistol. The contents of the cash register ($267.00) were emptied into a sack and after Mrs. Pennington was again struck with the pistol, knocking her unconscious, the men left.

Police were called to the scene of the robbery and Mrs. Pennington described the robbers. Some two weeks after the robbery, Mrs. Pennington went to police headquarters and, from a photograph, identified James Moten as one of the robbers. She picked Moten out of a three-man lineup that evening. At Moten’s trial, Mrs. Pennington identified him as the robber who did not have the gun. She testified that she had seen Moten in the store several times previous to the robbery and had an opportunity to observe him for several minutes on the occasion of the robbery.

Moten produced testimony of fellow employees at the Mission East Nursing Center to show that on the date of the robbery he was at work from 7:45 A.M. until 4:00 P.M. Moten testified that he was at his place of employment until 4:00 P.M. and that he received his paycheck there at about 3:00 P.M.

On this appeal, appellant first contends that the trial court erred in admitting over his objection evidence of his work habits at the Mission East Nursing Center. This point might be disposed of summarily inasmuch as appellant’s statement of his point does not point out “wherein and why” the action of the trial court was erroneous. Rule 84.04(d). From the argument it may be found that appellant’s contention is that such evidence was prejudicial, irrelevant and sought to prove appellant’s “work reputation” by “specific acts of conduct.”

As above stated, the defense was alibi, with defendant attempting to show that he was at work at the time of the robbery. His first witness was the personnel clerk of the Mission East Nursing Center. She produced appellant’s time card for October 4, 1974, which showed that appellant checked in at 7:45 and out at 4:01. On cross-examination, the witness stated, in response to the prosecutor’s question, that appellant’s work record was “quite unsatisfactory.” Thereupon defense counsel stated: “Your Honor, I am going to object to the work records of the defendant as not one of the issues in this trial. I am going to object to this entire line of questioning.” The objection was overruled and appellant cites this as one instance of error. Cross-examination of the witness proceeded to show that appellant’s unsatisfactory rating was in part attributable to unexcused absences from work which did not necessarily appear on the time records.

The Executive Housekeeper at the Center, under whom appellant worked as a custodial worker, testified on direct examination by appellant’s counsel that she “caught” appellant and another employee leaving'without permission by the side door to the institution at 9:30 A.M., October 4, and that she “sort of bawled them out * * * She testified that she gave appellant his check that afternoon between 3:30 and 4:00 P.M. On cross-examination, the witness testified, without objection, that appellant’s employment was terminated because his work was unsatisfactory. The witness also testified, without objection, that she had learned from other employees of appellant’s absences during working hours. The specific question asked the witness and which appellant now finds objectionable was whether or not appellant would “sneak off and watch T.V.” The witness stated, again without objection, that she “caught him watching the T.V. a couple of times.” Appellant also points to another question on cross-examination in which the witness was asked whether a lot of times appellant failed to get his work done to which the witness responded, no objection having been made, “That’s right.”

A fellow employee who had also been discharged at the time of the trial testified that he saw appellant at work at 3:00 P.M. on October 4. This employee was asked on cross-examination whether he was caught with defendant watching T.V. on October 14. No objection to the question was made and the witness replied that he did not remember. This too is one of the incidents relied upon on this assignment of error.

Finally, on cross-examination of defendant, he was asked whether or not his employment at Mission East was terminated because for one reason he did not work when he was supposed to. The appellant replied: “My work wasn’t up to standards; * * * This is the final incident relied upon by appellant.

The objection now voiced that the prosecutor was trying to present evidence of poor character by specific acts was never stated to the trial court. At best, giving appellant the benefit of a continuing objection based upon his first objection, the ground of objection in the trial court was that of irrelevancy. However, the interrogation, though it went rather far afield in the absence of objection to specific questions, was relevant from the standpoint of testing the alibi witnesses’ testimony that appellant was at work at the time of the robbery. The questions were designed to show that absence from work on the part of the defendant during the working day was not unusual and that the fact that the witnesses had seen defendant at work earlier and later on the date of the robbery did not necessarily mean that he was there at the critical time. That was the basic thrust of the cross-examination and as such it cannot be said to have been irrelevant. Certainly no abuse of discretion on the part of the trial court has been shown which would warrant the conclusion that its rulings were erroneous on the basis of the objection there made.

Appellant’s second assignment of error is based upon the state’s use in evidence of two photographs of the lineup at which Mrs. Pennington identified appellant, the photographs not having been produced in response to appellant’s discovery' request.

In the cross-examination of Mrs. Pennington, defense counsel asked questions designed to show that the other two persons in the three-man lineup at which she identified appellant were so dissimilar in appearance as to cause her to select appellant from the three. When, on redirect examination, the state produced two photographs of the lineup and offered them in evidence, defense counsel objected on the grounds that the photographs had not been produced in response to his discovery request. The prosecutor was not certain that the photographs had been in his file when he exhibited them to appellant’s counsel, but he further stated that it was not his original intention to use the photographs and that he decided to do so as a result of the cross-examination of Mrs. Pennington on the lineup. The trial court overruled the objection, stating that the photographs were in the nature of rebuttal and their use produced no unfairness rising to constitutional proportions.

Under Rule 25.45, the exclusion of evidence not produced under discovery rules is one of the sanctions available to the trial court. The imposition of such sanction is a matter for the trial court’s discretion. See State v. Johnson, 524 S.W.2d 97, 101-103[5][6] (Mo. banc 1975). Basically, the question is whether or not the failure to produce as required by the rules results in fundamental unfairness to the defendant. State v. Buckner, 526 S.W.2d 387 (Mo.App.1975). In his brief, appellant states that he places primary reliance upon Buckner. Buckner involved the failure on the part of the prosecutor to provide a signed written statement of the victim of a robbery and the principal witness for the state on the trial, compounded by the failure of the trial court, at the trial, to require production of the statement when its existence was disclosed. Inasmuch as the statement was not produced, the prejudice resulting from its nonproduction was impossible to assess and the court concluded that the only way to remedy the situation was to order a new trial.

Here the trial court dealt with two photographs not produced on discovery but presented at the trial. The court was in a position to assess whether permitting the use of the photographs might involve fundamental unfairness and concluded that there was no fundamental unfairness which required that the materials be excluded. The court here saw and considered the evidence, engaged in a fair exercise of discretion and concluded not to impose the requested sanction. The appellant has not shown that the action on the part of the trial court was an abuse of discretion. See State v. Dayton, 535 S.W.2d 469, 478[15, 16] (Mo.App.1976).

Appellant contends finally that the trial court erred in failing to sustain objections to or to censure in any manner the prosecutor’s misstatements of the evidence in his closing argument. Appellant has pointed out several examples of claimed misstatement by the prosecutor in his closing argument. He complains that the prosecutor stated that Mrs. Pennington saw a yellow auto at the scene of the robbery, with a particular license number. Appellant states that the police officer who answered the call to the scene stated that Mrs. Pennington described the robber’s vehicle as a black vehicle. Mrs. Pennington did testify that she saw a yellow auto near the store before the robbery and that it was gone afterward. The prosecutor’s remark was not a misstatement of her testimony. She did acknowledge that she described the black auto to the police as the first car she saw leaving the vicinity after the robbers left. She did not obtain a license number of either vehicle but someone obviously did get one for a yellow auto which was traced to appellant’s brother and found by the police the day after the robbery. Just where any prejudice might have resulted in this regard does not appear.

Appellant complains that the prosecutor stated that appellant struck her when she testified that the other robber did so. When defense counsel objected, the prosecutor stated that he was relying upon the doctrine of responsibility of all for the acts of each in a criminal endeavor. He then stated that defendant told his companion to hit the victim again, as Mrs. Pennington did testify. It seems clear that, although the trial court merely stated in response to defense counsel’s objection that the jury would remember the evidence, the prosecutor himself corrected his statement.

Appellant complains that the prosecutor argued that defendant’s supervisor stated that defendant was discharged for unexplained absences, where as the witness stated that it was because his work was unsatisfactory. One witness did testify that termination of defendant’s employment was due in part to his unexplained absences. The argument was not a misstatement of that witness’s testimony and the prosecutor did not attribute the statement to appellant’s supervisor.

The prosecutor stated, without objection, that none of appellant’s fellow employees testified that they saw him at his place of work at 3:00 P.M. on the date of the robbery. One former fellow employee did so testify, but inasmuch as there was no objection to the prosecutor’s statement in this regard, there is no basis for error on this score. Furthermore, defense counsel corrected the misstatement in his closing argument.

There has been no showing of error on the part of the trial court. The misstatements complained of were at the most minor and did not require corrective action on the part of the trial court. The trial court had instructed the jury in accordance with MAI-CR 2.68 as to the import of the arguments of counsel. For the most part, the remarks objected to were arguably not misstatement. Those that were did not stand uncorrected, either by the prosecutor or the defense counsel. This assignment of error is without merit. State v. Coleman, 441 S.W.2d 46, 53-54[15]-[17] (Mo.1969).

Judgment affirmed.

All concur.


source: Caselaw Access Project

author: DIXON, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Larry Ray MILLER, Defendant-Appellant.
    No. KCD 28118.
    Missouri Court of Appeals, Kansas City District.
    Aug. 30, 1976.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 12, 1976.
    Austin F. Shute, Kansas City, for defendant-appellant.
    John C. Danforth, Atty. Gen., Charles L. Howard, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   DIXON, Presiding Judge.

A jury convicted the defendant of assault with intent to kill with malice aforethought but were unable to agree on the punishment. The trial court set the punishment at twenty years, and the defendant appeals from the judgment and sentence entered.

The defendant raises no issue of submissi-bility and a brief statement of the facts will suffice. Frank H. Perez, the manager of a homosexual bar in Kansas City, Missouri, was assaulted by three men, all known to him, among them the defendant who was also an employee of the bar. Perez said that one of his attackers beat him with a pool cue and that the defendant beat him with a metal bar from a set of dumb bell weights which Perez had seen before since they were a part of the equipment on the premises. Although he did not see the weapon used by the third person, Perez stated it was a very hard object. Perez identified the pool cue and two metal bars which were similar but he was unable to say which one of the bars the defendant was using to strike him. The police officers who arrived at the scene found the metal bars in close proximity to Perez, and one of the bars had particles of blood, hair and flesh on it when found. Perez suffered several fractures of the skull and severe lacerations to his head as a result of the attack. The State’s evidence further demonstrated that the attack was based upon a conspiracy to kill Perez between the defendant and the other two assailants. This came into the case by the direct testimony of one of the co-conspirators. Defendant was seen immediately after the assault with blood on his shirt and arm.

Defendant raises a claim of error in the admission of the two 15-inch steel bars in a diffused point asserting it was error to admit using the description of the exhibit in the instruction, and permitting reference to it in argument by the prosecutor. It is clear that the weapons used to assault Perez were sufficiently identified to permit their admission into evidence. State of Missouri v. Hanson, 541 S.W.2d 79 (Mo.App.1976); State v. McAllister, 534 S.W.2d 611 (Mo.App.1976). An examination of the manner in which the exhibits were used does not demonstrate the prejudice which defendant claims outweighs the probative value of the evidence. The cases cited by the defendant are cases involving prose-cutorial conduct which amounted to a personalization of the jury and, although coincidentally weapons were also used, the thrust of the cited cases goes to the nature of the argument rather than the use of exhibits properly admitted in evidence. Argument of an even more aggravated fashion has been approved. In State v. Murray, 280 S.W.2d 809, 812 (Mo.1955), the prosecutor grabbed a gun and ran before the jury with it shaking it in the face of the jury and the court refused to find error in that action.

Defendant’s second claim is that the court erred in overruling an objection to the prosecutor’s closing argument in his use of the pool cue which had been identified as an exhibit. The defendant again cites cases involving personalization of the jury. In this case, the argument to which the objection was made was as follows:

“The pool cue, the evidence showed Mr. Miller as having brought in that night because he might need it later on, the pool cue that was found with blood on it, the pool cue that can deal a blow (indicating) that can kill a man.
MR. PELOFSKY: If the Court please, I object to counsel demonstrating. There’s been no evidence of that in this case.”

The argument simply does not have the effect which defendant now ascribes to it in the brief. As to the actual objection, clearly the record does not support any inference that the demonstration was improper or tended to inflame the jury. Defendant claims in his brief that counsel struck the rail or the witness chair with the pool cue, but the record does not support that assertion. In any event, the severity of the victim’s injuries and his description of the assault did justify the prosecutor demonstrating to the jury the manner in which the pool cue could have inflicted injuries which were almost fatal.

Defendant raises as a final issue a claim that the grand jury was not a random selection nor a cross section of the community in violation of the 4th and 5th amendments to the United States Constitution, and Article I, Section 16 of the Missouri Constitution. The point is so abstract that it could be ignored. In the argument portion of the brief, the apparent ground for the attack is that the defendant was also a homosexual and that no homosexuals were shown to be on the grand jury lists. Stating the argument should be a sufficient answer, but even if it merited further consideration, defendant has produced no evidence or facts with respect to the composition of the grand jury, the selection process, or the percentage of homosexuals in the community, a necessary predicate to such an attack. State v. Baker, 524 S.W.2d 122, 125 (Mo. banc 1975).

The judgment is affirmed.

All concur.


author: PRITCHARD, Chief Judge.

text:
    Roy D. HORRIDGE, Appellant, v. Diane J. HORRIDGE, Respondent.
    No. KCD 27469.
    Missouri Court of Appeals, Kansas City District.
    Aug. 30, 1976.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 12, 1976.
    Morris, Foust, Beckett & Ponick, Max W. Foust and Russell D. Jacobson, Kansas City, for appellant.
    Max Von Erdmannsdorff, Kansas City (Von Erdmannsdorff, Zimmerman, Gunn & Trimble, Kansas City, of counsel), for respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   PRITCHARD, Chief Judge.

In this dissolution of marriage proceedings the trial court made this award: “2. Respondent is awarded judgment and execution as due against Petitioner in the sum of Twenty-five Thousand Dollars ($25,-000.00), without interest, payable as follows: (a) Five Thousand Dollars ($5,000.00) on June 1, 1974 payable to the Clerk of this Court, (b) Five hundred Dollars ($500.00) on July 1, 1974 and Five Hundred Dollars ($500.00) on the first day of each succeeding month thereafter until the full sum of Twenty-five Thousand Dollars ($25,000.00) has been fully paid. All such payments are to be made to the Clerk of this Court.” Appellant here was further ordered to provide respondent with a current model car, such as a Buick, Oldsmobile or Pontiac, for her exclusive use for 24 months, appellant to hold title to the car in whatever manner he chose.

Although the trial court did not denominate the award as “maintenance” the appellant so treats it in his brief. It is noted that in her petition, respondent pleaded that she “lacks sufficient property and earning capacity, including any marital property awarded to her, to provide for her needs and is unable to support herself through employment, whereas Roy Hor-ridge is well able to contribute to her maintenance.” Respondent’s prayer, in part, was that she “be awarded a sum of money as and for maintenance.” Respondent offered no evidence of her earning capacity, and the insufficiency of her property to provide for her needs. No evidence was offered as to her needs, and on none of these matters, of course, was there any finding under § 452.335, RSMo (Laws 1973, p. 470, § 8, effective Jan. 1, 1974), which provides: “[T]he court may grant a maintenance order to either spouse, but only if it finds that the spouse seeking maintenance (1) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and (2) Is unable to support himself through appropriate employment * * *(Italics added.)

Appellant does not precisely predicate his sole contention upon the failure of proof by respondent of the legislatively mandated conditions for maintenance. He says that the trial court erred in the award because it is excessive “and Not Supported by the Evidence in the Record.” The principal issue at trial was that of appellant’s net worth, obviously done for the purpose of showing his ability to pay respondent maintenance. The evidence on that issue was conflicting. Respondent produced a financial statement of appellant dated December 15, 1972, showing a net worth in excess of $700,000, and testified that he had told her at various times that he was worth a half million, a quarter of a million, or several thousands of dollars. Appellant testified the financial statement was fictitious and was made only for the purpose of securing credit. He produced balance sheets of two of his corporations showing a relatively small net worth, and testified that he owed $135,000 on a guarantee to the Commerce Trust Company, and that there was a $250,-000 default judgment for the wrongful death of two of his pilots outstanding against him. Other liabilities were testified by him, all of which indicated his insolvency. This conflicting evidence will again be for the consideration by the trial court along with the matter of credibility of the witnesses. The parties have misconceived the requirements of a maintenance award under the statute, and there is a failure of proof of respondent’s reasonable needs, her earning capacity, and the sufficiency of her property to provide for her needs. The judgment will not be reversed outright, however, because respondent should be given the opportunity to make proof of the missing elements of her right to maintenance, and if she does so sufficiently on new trial, the court should make the required findings under § 452.335. For authority to remand this case for a new trial and the taking of further proof, see Dougherty v. Duckworth, 388 S.W.2d 870, 876[10, 11] (Mo.1965); Billings v. Paine, 319 S.W.2d 653, 660[16, 17] (Mo.1959); Feinstein v. McGuire, 297 S.W.2d 513, 518[13] (Mo.1957); and Gardner v. Switzer, 353 Mo. 1124, 186 S.W.2d 561 (1945).

The judgment is reversed and the case is remanded for new trial.

All concur.


author: JAMES A. MOORE, Special Judge:

text:
    Valarie FLOYD, Respondent-Appellant, v. Warren BRENNER, Appellant-Respondent.
    Nos. KCD 27553, KCD 27554.
    Missouri Court of Appeals, Kansas City District.
    Aug. 30, 1976.

      Hall & Stahl, R. Brian Hall, Gladstone, for plaintiff-appellant-respondent, Floyd.
    Morris, Foust, Beckett & Ponick, Max W. Foust, Russell D. Jacobson, Kansas City, for defendant-appellant-respondent, Brenner.
    Before SWOFFORD, P. J., and MOORE, BONDURANT and CLYMER, Special Judges.
   JAMES A. MOORE, Special Judge:

Plaintiff sued in conversion for actual and punitive damages. She had rented a furnished house from defendant in late 1971. When the rent was not paid after May, 1972, defendant unavailingly tried to find the plaintiff in the premises both by night and by day. Finally, in August, 1972, defendant caused a padlock to be placed on the door and took charge of the personal property then in the home.

Part of the items were stored in a shed. Some items were in the dwelling at the time of trial and were then returned to plaintiff. Other items were delivered to one Sloan for his use. The last group consisted of pots and pans and a bottle opener. A jury could have concluded that all of the personalty was not returned to plaintiff upon her demand.

A jury found the issues for the plaintiff and awarded her actual and punitive damages on July 23, 1974. The transcript on appeal does not include any judgment entered upon the verdict. Following the filing of after-trial motions on August 14, 1974, an order was entered denying a new trial and for “remittitur of $2,000.00 on the judgment of $7,000.00 punitive damages” on August 22, 1974.

Defendant appealed from the non-entered judgment of July 23, 1974. Plaintiff appealed “from the judgment entered in this action on the 22nd day of August, 1974”. We reverse and remand.

Judgment is entered upon the verdict in civil actions, Williams v. Pemiscot County, 345 Mo. 415, 133 S.W.2d 417, 418[3] (1929). This procedure is reflected in the first sentence of Rule 78.04, “A Motion for a new trial shall be filed not later than 15 days after the entry of the judgment on a jury verdict, which judgment shall be entered as of the date of the verdict.” (Contrast the procedure in criminal causes where sentence is imposed and judgment entered only after disposition of a motion for a new trial. Rule 27.07 et seq. and Rule 27.20.) In light of the cross appeals and the disposition herein made, this Court will disregard in this case the ministerial omission of the clerk. Byrd v. McGinnis, 299 S.W.2d 455, 460[7, 8] (Mo.1957). This should in nowise suggest that this court waives its right and duty to dismiss appeals in appropriate eases.

The motion for new trial and alternative motion for remittitur were untimely filed. (Verdicts and the judgment which should have been entered thereon, July 23, 1974; motions filed August 14,1974.) Rule 78.04 (formerly Rule 78.02) and Rule 44.-01(b).

Defendant’s motion under Rule 75.01 has somewhat greater vigor. Had defendant been able to persuade the court to grant a new trial within 30 days after verdict and judgment, the action of the trial court might have been affirmed even though grounds for a new trial were imperfectly or untimely raised or were considered by the court sua sponte. However, the trial court denied this motion on the 30th day. See Woods v. Kansas City Club, 386 S.W.2d 62, 64 — 65[2] (Mo.1964).

No timely motion preserved anything for appellate review. Rule 78.07 (formerly and at the time of trial Rule 79.03). Invocation of the plain error doctrine by way of Rule 75.01 did not move the trial court to action adverse to the finding of the issues for the plaintiff.

Plaintiff is nominally an appellant as well as respondent. However, she assigns no error and rather seeks to support the rulings in the trial court. Her appeal is dismissed.

Defendant asserts that the court erred in giving Instruction No. 6 adapted from MAI 4.02 without giving the related definition Instruction MAI 16.02. The given instruction read:

“If you find the issues in favor of the plaintiff, then you must award the plaintiff such sum as you may find from the evidence to be the fair market value of plaintiff’s property converted by defendant.”

Defendant requests review of his contention under the plain error rule.

Since the claimed error in charging the jury was not preserved for required appellate review, Rules 78.07, 78.09 and 84.13(a), we are invited to review the assignment under the plain error rule, Rule 84.13(c). In this posture of the case, this court is not directly concerned with the consideration of “plain error” by the trial court under Rule 78.08 or the portion of its predecessor, Rule 79.04, applicable to trial courts.

It was error to fail to give the mandatory definition instruction MAI 16.02. The discretion to be exercised by this court requires a finding “that manifest injustice or miscarriage of justice has resulted.” Was the omission a mere fault or a most grievous fault?

The inclusion of MAI 16.02 defining “fair market value” was and is mandatory by reason of the “Notes on Use” under MAI 4.02 given at plaintiff’s request. Royal Indemnity Co. v. Schneider, 485 S.W.2d 452, 458[4] (Mo.App.1972).

In determining the prejudicial effect of the omission, we can and should consider the totality of the circumstances including the nature of the evidence and the arguments of counsel. The only value witness was the plaintiff herself under the self-help doctrine of cases such as Hood v. M. F. A. Mutual Insurance Co., 379 S.W.2d 806, 812[9—11] (Mo.App.1964). She was imprecise and vacillating. Sometimes she thought the value was the amount prayed, $300.00, and at other times $500.00. Value was a total for the mixed lot.

She replied affirmatively to the question “You mentioned a lot of things, such as novelties, which had a sentimental value to you more than anything else?” The personalized argument of her counsel included sentences such as, “I think she may not have had a lot in terms of dollars and cents, but it meant quite a lot to her in terms of sentiment.” In rebuttal her counsel referred to the value of certain items and said, “It is not a simply a question of whether they were important to them, it’s the question that they were important to Valarie. It’s her belongings, and whether or not it was scratch paper or whether it was of great value, it’s hers and she has a right to hang on to that.” Although the statements arguably may have been intended to support plaintiff’s claim to punitive damages, evidence and arguments set the stage for the exercise of a roving commission by the jury, unrestrained by the sobering influence of definition.

The effect of the omission of the mandatory definition was prejudicial and materially affected the merits of the action. We are entitled to, and do, consider it as plain error resulting in manifest injustice or miscarriage of justice. Bridgeforth v. Proffitt, 490 S.W.2d 416, 424-425 (Mo.App.1973).

Plaintiff’s appeal is dismissed. (KCD 27553) The judgment is reversed and the cause is remanded for a new trial. (KCD 27554).

All concur.

      . 4.02 Measure of Damages — Property Only

      If you find the issues in favor of the plaintiff, then you must award the plaintiff such sum as you may find from the evidence to be the difference between the fair market value of (here identify property) before it was damaged and its fair market value after it was damaged, [plus such sum as you may find from the evidence will fairly and justly compensate the plaintiff for the loss of the use thereof until such property could reasonably be repaired or replaced].

        4.02 Measure of Damages—Property Only— Notes on Use [Supplemental] MAI 16.02 defining “fair market value” must be given.

      . 16.02 Definitions—Fair Market Value Defined

      The term “fair market value” means the price which the property in question would bring when offered for sale by one willing but not obliged to sell it, and is bought by one willing or desirous to purchase it but who is not compelled to do so.
      In determining fair market value you should take into consideration all the uses to which the property may best be applied or for which it is best adapted, under existing conditions and under conditions to be reasonably expected in the near future.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    COMMERCIAL CREDIT EQUIPMENT CORPORATION, Appellant, v. Virgil F. COLLEY and Imogene W. Colley, Respondents.
    No. 27323.
    Missouri Court of Appeals, Kansas City District.
    Aug. 30, 1976.
    Rehearing Denied Oct. 12, 1976.
    Alvin D. Shapiro, Stinson, Mag, Thomson, McEvers & Fizzell, Donald L. Mason, Sheridan, Sanders, Carr, White & Mason, Kansas City, for appellant.
    Edward L. Simmons, Howard D. Lay, Donaldson & Lay, Kansas City, for respondents.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal by' Commercial Credit Equipment Corporation from judgment on directed verdicts in favor of Virgil F. and Imogene W. Colley on CCEC’s petition and on Counts I and II of the Colleys’ counterclaim, and from judgment of $16,000 on jury verdict on Count III of the counterclaim. The question with respect to the directed verdicts is whether certain agreements for the use of farm equipment are leases as contended by CCEC, or conditional sales subject to Sections 428.100 and 428.110, RSMo, as contended by the Colleys and found by the court. The question with respect to the money judgment is whether the court erred in giving the instruction which submitted Count III of the counterclaim. Judgment on directed verdicts reversed; judgment on the counterclaim affirmed; cause .remanded.

In Count I of its petition, CCEC alleged that on May 8, 1964, the Colleys “executed a certain document known as a Lease” by which they “agreed to lease * * * one Fox Forage Harvester * * * and one Fox Pickup Hay Unit and one Fox Corn Harvester for the stated consideration of $3,646.08 payable $303.84 at the execution * * *, balance to be paid in 33 equal monthly installments of $101.28,” beginning June 15, 1964; that the Colleys breached the agreement and, as a result, CCEC sustained damage in sum $1,246.21, for which demand has been made, and for which judgment was prayed.

In Count II, CCEC alleged that on October 7, 1963, the Colleys “entered into a certain Lease agreement” by which they were “leasing * * * certain equipment” and were to pay “the aggregate sum of $23,494.80 payable $279.70 upon the execution * * * and a like sum for 83 months” beginning December 7, 1963; that the Colleys breached the lease, and, as a result, CCEC sustained damage in sum $11,-931.50 for which judgment was prayed.

In Counts I and II of their answer and counterclaim, the Colleys alleged that “the lease (in each instance) is a two-party agreement * * * entered into * * * to evidence a conditional sale by means of a lease agreement” within the meaning of Sections 428.100-428.110 and, as a result, “because the plaintiff elected to repossess said property * * * plaintiff must refund seventy-five percent of payments made by defendants and is not entitled by law to any deficiency”; that in June, 1965, CCEC elected to declare default on the conditional sales and repossessed the property February 23, 1966. The Colleys prayed for the dismissal of Counts I and II of the petition and for judgment on their counterclaim for refund of (as amended to conform to the proof) $1012.80 on Count I and $4195 on Count II.

In Count III the Colleys alleged they were defrauded by CCEC through one James Woods and prayed for actual damages of $100,000 and punitive damages of $100,000.

Appellant contends the court erred in ruling the leases were subject to former Sections 428.100 and 428.110 and in the resulting directed verdicts.

Count II of CCEC’s petition and Count II of Colleys’ counterclaim involve CCEC Exhibit 8:

[See following illustrations]

2.2 All Rental Payments to be paid by User to CCEC in advance of each Rental Period, subject to later refund or deficiency to the extent provided in Section 14.

2.3 All rentals shall be paid at the office of CCEC shown above, or such place as CCEC hereafter may designate from time

3. Renewal or Extension. If User should not default in the performance of any of its obligations hereunder, User may, by thirty (30) days’ written notice to CCEC prior to the expiration hereof, or any renewed or extended period, elect to renew or extend this Lease for successive twelve month periods, provided however, that User shall pa> to CCEC for each such renewal an annual rental in advance equalling 2% of the aggregate rentals otherwise payable hereunder, and all the provisions of this Lease shall apply, except as otherwise specifically provided herein or in any subsequent agreement of the parlies.

4. Warranties: Acceptance of Units by User. CCEC hereby assigns to User, for and during the lease term with respect to any Unit, any warranty of the manufacturer, expressed or implied, issued on each Unit, and hereby authorizes User to obtain the customary service furnished by the manufacturer in connection therewith, at User’s expense. User acknowledges and agrees that each Unit is of a size, design, capacity and manufacture selected by User; User is satisfied that the same is suitable for its purposes; CCEC is not a manufacturer thereof nor a dealer in the distribution or sale thereof; CCEC has not made and docs not make hereby, any independent representation with respect to the merchantability, condition or suitability of any Unit for the purposes of User, or any other representation of any kind with respect thereto. User agrees that CCEC shall not be liable to User for any loss, claim, demand, liability, cost, damage or expense of any kind caused, or alleged to be caused, directly or indirectly, by any Unit, or by any inadequacy thereof for any purpose, or by any defect therein, or the use or maintenance thereof, or any repairs, servicing or adjustments thereto, or any delay in providing, or failure to provide the same, or any interruption or loss of service or use thereof, or any loss of business, or any damage whatsoever and howsoever caused.

5. Location of Units. Units shall at all times be kept at the address of User shown above, and shall not be removed therefrom without the prior written consent of CCEC.

6.Use of Units.

6.1 User shall comply and cause all persons operating Units leased hereunder to comply with all applicable laws and regulations .relating to the Units, and with all conditions of the policies of insurance on the Units, and, subject to Section 4, shall maintain the Units in good repair and operating condition, at User’s expense.

6.2 User will not. without the prior written consent of CCEC, affix or install any accessories, equipment, or device on any Unit leased hereunder, if such addition will impair the originally intended function or use of such Unit. All repairs, parts, supplies, accessories, equipment and devices affixed to any Unit shall become forthwith the property of CCEC (except such as may be removed without in any way affecting the onginall> intended function or use of such Unit). User will not, without the prior written consent of CCEC, affix or install any Unit leased hereunder to or in any other personal property or to or in any real property.

THIS FORM FOR USE IN All STATES EXCEPT INDIANA, NEW YORK AND OKLAHOMA.

CCEC 1448S D

7. Sublease, Assignment or Encumbrances by User Prohibited.

7.1 User shall not sublease any Units leased hereunder nor shall User assign this Lease, or any of the User’s rights or interest in any Units, except with the prior written consent of CCEC.

7.2 User shall not mortgage, pledge or otherwise encumber any Units, or its interest therein, or permit the same to become encumbered.

8. Expenses, Fees, Ta'tcs. User shall pay all costs, expenses, tees and charges incurred in connection with the use and operation of Units during the lease terms thereof, and all taxes whatsoever by whomsoever payable (other than Federal or State income taxes of CCEC) on or relating to the Units leased hereunder and the purchase, sale, rental, use or operation thereof. User shall reimburse to CCEC, upon demand, as additional rent, the amount or amounts of any such costs, expenses, fees, charges and taxes paid by CCEC. It is the intent of this Agreement that CCEC shall receive the rent hereunder as a net icturn on the Units leased hereunder.

9. Loss or Damage of Units. All risks of loss or damage of Units leased hereunder, from whatever cause, hereby are assumed by User during the entire lease term of the Unit, and until final settlement is made pursuant to Section 14. notw ithstanding any arrangements made for the sale of the Units pursuant to Section 13 oi otherwise. If any Unit should be damaged, but be capable of being repaired and if the applicable insurance proceeds be insuftkiem to pay the cost of repairing the same, User shall either repair or replace the same, at User's cost. If any Unit should be damaged beyond repair, or destroyed, and the wreckage thereof be available for sale, the wreckage shall be sold and final settlement made as provided in Section 13 and Section 14: piovided however, that if the wreckage should not be available for sale, User shall pay io CCEC forthwith an amount equal to unpaid rental for the unexpired portion of the initial term of the lease with respect to such Unit, or of the renewed or extended term, as the case may be.

10. Insurance.

10.1 User assumes all risks and liability for the maintenance, repair, use. operation and storage of all Units leased hereunder, and for injuries or deaths of persons and damage to property, howsoever arising from or incident to such maintenance, repair, use, operation or storage, whether such injury or death to persons be of agents or employes of User or of third parties, and whether such damage be to property of User or others.

10.2 User shall provide adequate insurance against liability for bodily injury and property damage from the time a Unit is delivered to User until the Unit is sold and legal title passes to the purchaser thereof.

10.3 User shall provide adequate insurance against loss or damage to the Units due to risks insured against by a policy of fire, theft and comprehensive insurance.

10.4 User shall deliver to CCEC, prior to the beginning of the lease term with respect to any Unit, or prior to the effective date of any cancellation or expiration of such insurance, as the case may be. the insurance policy, a certificate or other evidence, satisfactory to CCEC, of the maintenance of the insurance required hereunder.

11. Indemnity. Regardless of any insurance provided in Section 10, User shall at all times be liable to and indemnify and save harmless CCEC from and against any and all claims, demands, liabilities, loss, costs and expenses on account of death, bodily injury or property damage, including the loss of use of the property damaged, occasioned by or alleged to have been occasioned by any Unit and its ownership, maintenance, repair, use. operation or storage during the term it is leased hereunder. User shall also be-hable to indemnify and save harmless CCEC from and against any loss, damage or destruction of any Unit. This indemnity shall not be affected by any termination of this Lease, or the lease with respect to any Unit.

12. Return of Units. At the expiration of the lease term with respect to any Unit. User shall, upon demand, return such Unit to CCEC, at such place as may oc designated by CCbC. in the same operating ordci. tepair, condition and appearance as when received, excepting only for reasonable wear and tear, and damage by any cause covered by collectible insurance; provided however, that such place $all Ro^be more than fifty (50) miles from the location of the Units, and provided further, that User, in lieu of returning any Unit to CC^^and after promptly notifying CCEC of its intern so to do. may arrange for the immediate sale of such Unit, and transmit to CCEC tb&\ct re^lc proceeds delivered therefrom, subject to the provisions of Section 13 and Section 14.

f3. Sale. Notwithstanding Section 2, at any time after the first twelve (12) months of the lease term with respect to any Unit, User nfeyjjby written nqtice to CCEC, elect to terminate this Lease with respect to such Unit. If User should so elect. User promptly there* aftegshall arrangc.for the sale of such Unit by bona fide sdlc in ihc open market. No such sale shall be made without the prior written apnftval pf-CCEG.' If approved, CCLC shall, upon written request of User, execute, or cause to be executed, and transmit promptly to User all bills of sale and other documents necessary to effectuate such sale. Upon the sale of any Unit, User shall deliver to CCEC forthwith the net amount received by User from such sale after deduction of all expenses incurred by User m connection therewith, said amount being referred to hereinafter as the net resale proceeds of such Unit.

14. Final Settlement. Nothwithstanding Section 2, upon receipt by CCEC of the net resale proceeds of any Unit as provided in Section 9 and Section 13. or upon receipt by CCFC of the proceeds of any insurance paid to CCtC because of the loss or destruction of a Unit, CCEC shall refund to User, as an adjustment of the rental payable hereunder, the amount (if any) by which the sum of (a) the net resale proceeds, or such insurance proceeds received by CCEC, and (b) the total of all of the rental payments (including the Advance Rental) made to CCEC by User, exceeds the total rental herein provided for the term of the lease with respect to such Units, and, if this Lease be renewed or extended, the totdl rental herein provided to be paid to CCEC by User with respect to such renewal or extended term. If such sum should be less than the total rental herein provided for the term of the lease with respect to such Units, and, if this Lease be renewed or extended, the total rental herein provided to be paid to CCEC by User with respect to such renewed or extended term, User shall pay such deficiency to CCEC, as additional rental, promptly upon demand.

15. Default.

15.1 Time is of the essence hereof. If User should default in the payment of any installment of fixed rentals, or any other sums payable by User to or for the account of CCCC hereunder, or if User should breach or default in the performance of any other of the terms and conditions hereof, ami any sxich default or breach should continue for more thdn ten (10) days after CCEC shall have demanded payment or performance thereof in writing, or if a petition under any Chapter of the Bankruptcy Act, as amended, or for the appointment of a receiver of any part of the property of User, or any other proceedings for the relief of debtors, be filed by or against User, or if User should make a general assignment for the benefit of creditors, should suspend business or commji any act amounting to a business failure, or if an attachment be levied or tax lien be filed against any of User’s property, or> if USer should make any voluntary assignment or transfer of User's interest as lessee hereunder (in a manner or to a person not permitted by the terms hereof) or all or substantially all of its property, then, in any of such events (each of which shall constitute a breach of this Lease), CCEC, at its option, by notice in writing to User, may declare this Lease in default. Thereupon CCEC shall be entitled to possession of all Units then subject to this Lease, and CCEC, by its agents, may take possession of the Units wherever the same may be found, and for that purpose may enter upon any premises of User. CCEC shall hold the Units so repossessed free and clear of this Lease and of any of the rights of User hereunder. In any of such events, CCEC shall be entitled to recover from User, as liquidated damages and not as a penalty for the breach of this Lease, all unpaid fixed rentals for the period up to the time that CCEC obtains possession of the Units, together with all additional rentals and other sums payable by User pursuant to any of the provisions of this Lease then owing and unpaid, and all costs and expenses, including court costs and an attorney’s fees, incurred by CCEC in the enforcement of its rights and remedies hereunder. CCEC shall retdin ail rental and additional sums paid by User to CCEC hereunder wuh respect to all Units, and CCEC shall retain all resale proceeds, refunds and other sums, if any, then in its possession which, had this Lease not been declared in default, otherwise would be payable to User hereunder, in accordance with the provisions of Section 14, and shall apply same and all or any portion of the Advance Rental then held by CCEC against User’s liability under this Section 15.

15.2 CCEC may, without notice, but shall not be obligated to, lease the Units, or any of them, for such period, rental, and to such persons as CCEC shall elect and shall apply the net proceeds of any such renting in payment of the rent and other obligations due from User to CCEC hereunder, by acceleration or otherwise.

15.3 CCEC may. without notice, but shall not be obligated to, sell such Units, or any of them, at public or private sale or sales, upon such terms as CCEC may deem advisable. In the event of any such sale or sales, CCEC shall, in addition to all other rights or remedies, hereunder, be entitled to retain, as liquidated damages and not as penalty, all proceeds of any and all such sales, and to recover from User all additional rents in respect of the Units sold, determined with respect to each Unit as provided in Section 14. CCEC may bid for or purchase any or all Units at any such sale.

15.4Repossession by CCEC as aforesaid and any sale or sales made by CCEC of any Unit so repossessed shall not affect the right of CCEC to recover from User any and all damages which CCEC shall have sustained by reason of the breach by User of any of the covenants or the terms of this Lease.

16. Miscellaneous.

16.1 This agreement is, and is intended to be a lease, and User docs not acquire hereby any right, title or interest whatsoever, legal or equitable, in or to any of the Units, or to the proceeds of the sale of any Units, except its interest as lessee hereunder.

16 2 CCEC warrants that, if User performs its obligations under this Lease, User shall peaceably and quietly hold, possess and use the Units during the entire lease term, free from any interference or hindrance.

16.3 The relationship between CCEC and User shall alv vs and only be that of lessor and lessee. User shall never at any time during the term of this Lease for any purpose whatsoever b». r become the agent of CCEC, and CCEC shall not be responsible for the acts or omissions of User, or ns agents.

16.4 CCECs rights and remedies with respect to any of the terms and conditions of this Lease shall be cumulative and not exclusive, and shall be in addition to all other rights and remedies in its favor.

16.5 CCECs failure to enforce strictly any provisions of this Lease shall not be construed as a waiver thereof or as excusing User from future performance.

16.6 The invalidity of any portion of this Lease shall not alfcct the remaining valid portions thereof.

16.7 User specifically agrees that Units shall at all tunes and for all purposes be considered personal property, notwithstanding the manner or mode of attachment to real estate.

16.8 All notices shall be binding upon the parties hereto if sent to the address set forth herein (unless a subsequent address has been furnished, by certified mail, by one party to the other).

16.9 This Lease constitutes the entire agreement between the parties hereto. Any change or modification to this Lease must be in writing and signed by the parties hereto.

Count I in each pleading involves CCEC Exhibit 1 which is identical to Exhibit 8 except that it is dated May 8, 1964, and covers the Fox Forage Harvester, Pickup Hay Unit, and Corn Harvester.

The Colleys experienced financial problems in late 1964 resulting in foreclosure by their bank on their dairy herd and default on their payments to CCEC. CCEC repossessed the equipment described in Exhibits 1 and 8 February 23, 1966. On April 20, 1966, CCEC sold the equipment described in Exhibit 1 and, on May 26, 1966, CCEC sold the equipment described in Exhibit 8. The Colleys were credited with the amounts realized by the sales and, as stated in appellant’s brief, “[s]uit for the difference was then filed.”

The governing statutes follow:

“428.100. Conditional sales void as to creditors unless recorded. In all eases where any personal property shall be sold to any person, to be paid for in whole or in part in installments, or shall be leased, rented, hired or delivered to another on condition that the same shall belong to the person purchasing, leasing, renting, hiring or receiving the same whenever the amount paid shall be a certain sum, or the value of such property, the title to the same to remain to the vendor, lessor, renter, hirer or deliverer of the same, until such sum, or the value of such property, or any part thereof, shall have been paid, such condition, in regard to the title so remaining until such payment, shall be void as to all subsequent purchasers in good faith, and creditors, unless such condition shall be evidenced by writing executed, acknowledged and recorded * * * Ü
“428.110. Duty of vendor before taking possession of property. Whenever such property is sold or leased, rented, hired, or delivered, it shall be unlawful for the vendor, lessor, renter, hirer or deliverer * * * to take possession of said property without tendering or refunding to the purchaser, lessee, renter or hirer thereof, or any party receiving the same, the sum or sums of money so paid, after deducting therefrom a reasonable compensation for the use of such property; which shall in no case exceed twenty-five per cent of the amount so paid, anything in the contract to the contrary notwithstanding, and whether such condition be expressed in such contract or not * * *

The parties’ contentions involve a proper construction of the contract between them. The real character of the instrument is not determined from its form, but from the intention of the parties as gathered from the contract itself. In determining whether an instrument is a lease or a conditional sales contract and thus subject to the foregoing statutes, a test usually applied is whether the instrument requires or permits the transferee to return the property in lieu of paying the purchase price. If the return of the property is either required or permitted, the instrument will be held to be a lease; if the transferee is obligated to pay the purchase price, even though such price is denominated rental or hire, the contract will be held to be one of sale. Kolb v. Golden Rule Baking Co., 222 Mo.App. 1068, 9 S.W.2d 840, 842[1][3] (1928). See also RCA Corporation v. State Tax Commission, 513 S.W.2d 313, 317[2] (Mo.1974).

The agreements between CCEC and the Colleys require, in paragraph 12, the return of the equipment placed to the use of the Colleys. The agreements do not state a purchase price, and they do not state the aggregate amount of rentals to be a purchase price or the value of the equipment for purposes of a sale. The obligation is to pay rentals, not a purchase price. There is no option to purchase; there is no obligation to buy; there is no provision for passage of title to the Colleys at any time or under any circumstances. The agreements gave the Colleys a right to use the equipment, and obligated them to return the same upon expiration of the use term. Paragraph 16.1 recites the intention of the parties that the agreement is a lease and that the Colleys acquire no right, title or interest in the equipment leased.

The foregoing elements distinguish the agreements between CCEC and the Colleys from conditional sales subject to the conditional sales statutes. RCA Corporation v. State Tax Commission, supra. Cf. Kolb v. Golden Rule Baking Co., supra, where the contract stipulated that if defendant made no default in payments of any one or more of the installments of rental when due, plaintiff would execute and deliver to defendant a bill of sale for the property, the consideration of which shall be the above-mentioned installments of rentals which stamped the instrument as a conditional sales contract. See also: Sanders v. Commercial Credit Corp., 398 F.2d 988, 989 (5th Cir. 1968), where the agreement was “ ‘intended to be a lease’ ” and lessee did “ ‘not * * * acquire any right, title or interest in * * * the Chattels, except the right to use the same under the terms’ ” of the lease and “ ‘upon expiration’ ” the lessor “ ‘agreed to return possession of the chattels’ * * * a hornbook definition of a lease”; In re Gresham, 311 F.Supp. 974 (D.C.Va.1970), where the instrument in question was identical to the agreements between CCEC and the Colleys, and in reliance on Sanders v. Commercial Credit Corp., supra, it was said to “represent most explicitly the necessary substantial provisions of a lease * * * the agreements were lease agreements and title remained in the lessor.” 311 F.Supp. 976. See also Annotation: 17 A.L.R. 1435, 43 A.L.R. 1257, 92 A.L.R. 323, 175 A.L.R. 1386, where the collected cases construing instruments as conditional sales were construing agreements containing provision for transfer of title, consideration of which was payment without default of installment rentals.

Accordingly, the court erred in finding the instruments to be subject to the conditional sales statutes and in directing verdicts for the Colleys on Counts I and II of CCEC’s petition and on Counts I and II of the Colleys’ counterclaim.

Appellant does not question the sufficiency of evidence to sustain the jury verdict on Count III of Colleys’ contention. Appellant contends only that the court erred in giving counterclaimants’ verdict-directing instruction on Count III of their counterclaim.

CCEC did not include in its motion for new trial any allegation of error with respect to the verdict-directing instruction on Count III of the counterclaim to preserve it for review. Accordingly, the charge now made is not for review. Rule 78.07, V.A.M.R.

Appellant suggests consideration of the alleged error as a matter of plain error under Rule 78.08, V.A.M.R. The argument is that the instruction was confusing in its use of both lease and purchase terminology. The jury was to determine under Count III — whether the Colleys were defrauded through the misrepresentations of Mr. Woods, rather than whether the documents in evidence were leases or purchases. Accordingly, there is no showing of manifest injustice or miscarriage of justice to require relief by way of plain error. Rule 78.08, supra.

Judgment on Count III of defendants’ counterclaim affirmed; judgment on directed verdicts on Counts I and II of plaintiff’s petition and on Counts I and II of defendants’ answer and counterclaim reversed, and cause remanded.

All concur.

      . Sections 428.100 and 428.110 were repealed effective July 1, 1965, by adoption of the Uniform Commercial Code; however, transactions entered into prior to July 1, 1965, remained subject to the prior law. § 400.10-101, V.A. M.S.


author: PER CURIAM. PER CURIAM:

text:
    STATE of Missouri ex rel. Marshall CRAIG, Relator, v. The Honorable Stanley A. GRIMM, Judge of the Thirty Second Judicial Circuit of Missouri, Respondent.
    No. 10467.
    Missouri Court of Appeals, Springfield District.
    Sept. 24, 1976.
    Motion for Rehearing or to Transfer to Supreme Court Denied Oct. 13, 1976.

      Kenneth L. Dement, Sikeston, James R. Robison, Robison & Blanton, Sikeston, James E. Reeves, Ward & Reeves, Caruthersville, for relator.
    Wayne L. Millsap, Millsap, Weil, Eyer-man & Schenberg, Clayton, for respondent.

      . All italicized words were added to the printed forms by typewriter.

   PER CURIAM.

Our preliminary rule in prohibition issued in this original proceeding wherein relator seeks to prohibit respondent judge from proceeding with an action to contest a primary election brought under and governed by the provisions of §§ 124.010 to 124.051, inclusive (L.1972, p. 658), V.A.M.S.

A primary election was conducted August 3, 1976, to decide the Democratic Party’s nominee for judge of the 33rd judicial circuit consisting of Mississippi and Scott counties. § 478.157, V.A.M.S. Marshall Craig, the incumbent, and Tony Heckemeyer, were the only candidates. As certified August 9, the returns showed that Craig had received a plurality of 18 votes in the two county elections.

All of the following occurred on August 13: -Heckemeyer, as contestant, filed a petition in the Circuit Court of Scott County to contest the election. Craig was named as contestee. The pleading alleged, inter alia, that fraud, misconduct and irregularities had occurred in the elections held in the two involved counties. Contestant laid before respondent here, as judge of the 32nd judicial circuit, a copy of his petition and an “Application for a Date for a Preliminary Hearing as Required by V.A.M.S. § 120.020 [sic].” Respondent made an order finding that Craig was “unavailable” and ordered “that Contestant and Contestee shall meet in the Circuit Court Room [sic] at Scott County, Missouri on the 17th day of August, 1976, at 4:00 P.M. at which time I shall determine whether there shall be a recount of the ballots . . . and make such other orders as may be appropriate at that time.” The circuit clerk of Scott County, employing a printed form used in ordinary lawsuits, issued a summons. Omitting the caption and signature of the clerk, it read: “THE STATE OF MISSOURI to Defendant Marshall Craig you are hereby summoned to appear before the above-named court and to file your pleading to the petition and order copy of which is attached hereto, and to serve a copy of your pleading upon . . . attorney for plaintiff, whose address is . . ., all within 30 days after service of this summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the petition.” The sheriff made return on the summons to indicate that Craig had been personally served in Scott County with “a copy of the summons and a copy of the petition and Order.”

Respondent made the following docket sheet entry under date of August 17: “Comes contestant in person and with attorney . . . and contestee by attorneys . . . . Attorneys for contestee file a special appearance and motion to dismiss; briefs on said motion due August 30, 1976, and reply briefs due September 2, 1976. Cause set for trial on September 4, 1976, and to continue over weekend if necessary. Bond set at $1500. Contestant granted leave to file first amended petition, subject to right of contestee to object after ruling made on special appearance.” No ruling was made on the motion but on August 28 contestee Craig received a copy of an order made by respondent permitting contestant to take 16, 15 and 5 depositions, respectively, on September 1, 2 and 3. Craig’s petition for writ of prohibition to this court followed.

It has been said many times that election contest statutes constitute a code unto themselves [State ex rel. Gannon v. Cloyd, 514 S.W.2d 649, 650 (Mo.App.1974)], and since the jurisdiction of the circuit court is defined by the statutes, the letter of those laws is the limit of the court’s power. State ex rel. Phillips v. Barton, 300 Mo. 76, 91, 254 S.W. 85, 89 (banc 1923).

Among other things, relator Craig asseverates that respondent judge lacks jurisdiction of the cause because a valid summons was not served upon him. Proper service of process (in this case, a summons) in the form and manner prescribed by law has ever been a prerequisite to a court’s acquiring jurisdiction of the person albeit has jurisdiction of the subject matter of the action [State ex rel. MFA Mutual Insurance Company v. Rooney, 406 S.W.2d 1, 5 (Mo. banc 1966); Kerr v. Kerr, 519 S.W.2d 303, 305[1] (Mo.App.1975); St. Ferdinand Sewer Dist. of St. Louis County v. Turner, 208 S.W.2d 85, 87[2] (Mo.App.1948); State ex rel. Quincy, O. & K. C. R. Co. v. Myers, 126 Mo.App. 544, 549, 104 S.W. 1146, 1147[1] (1907)], and service of a defective or void summons is the equivalent to no service at all. State ex rel. Ratliff v. Morant, 271 S.W.2d 230, 232 (Mo.App.1954); Henman v. Westheimer, 110 Mo.App. 191, 197, 85 S.W. 101, 103[3] (1905).

As regards the summons in this case, §§ 124.010 and 124.020 (L.1972), V.A.M.S., provide, in substance, that when the contest petition is filed within five days after the result of the canvass of the votes has been certified, contestant shall forthwith present the petition to the judge who shall immediately note thereon the date of presentment and shall immediately set a date for a preliminary hearing on the petition within five days. When this has been done, the circuit clerk “shall forthwith issue summons upon the petition to the .contestee returnable to the day designated by the court” in its order setting a date for the preliminary hearing.

“The function of the service of the summons upon the contestee is to fix the day upon which he must appear in court” [State ex rel. Bess v. Schult, 143 S.W.2d 486, 492[7 and 9] (Mo.App.1940)], and the law requires that the summons upon the petition to the contestee shall be returnable to the day designated by the court or judge for the preliminary hearing. § 124.020, subsec. 2, V.A.M.S.; State ex rel. O’Reilly v. Kirkwood, 407 S.W.2d 613, 614 (Mo.App.1966). Consequently, the summons in this case should have been worded so as to fix the date upon which contestee was required to appear in court as being August 17. However, as previously noted and contrary to law, the summons actually issued required contestee “to appear within 30 days after service of this summons upon you.” Furthermore, and contrary to the summons issued, the law governing primary election contest cases does not require the contestee to file any pleadings to avoid default. State ex rel. Bess v. Schult, supra, 143 S.W.2d at 492.

The purpose of having a summons issued and served on the contestee is to acquire jurisdiction over his person. Possessed of this importance, the service of a summons as required by law becomes jurisdictional and is absolutely essential to the validity of the proceeding. Ramsey v. Huck, 267 Mo. 333, 338, 184 S.W. 966, 969 (banc 1916). Although a contestee may be apprised from his knowledge of the court’s order or otherwise that his appearance is expected on a day differing from that stated in the summons, a summons commanding him to appear 30 days hence does not confer jurisdiction over his person so as to require his appearance at an earlier time not stated in the summons. Cf. Davenport v. Teeters, 273 S.W.2d 506, 511[4] (Mo.App.1954); State ex rel. Rakowsky v. Bates, 286 S.W. 420, 422[5] (Mo.App.1926). The law does not provide for nor does it contemplate the service on the contestee of a copy of the court’s order setting the date for the preliminary hearing. Its attachment to the petition or the summons serves no office other than surplusage. In regard to respondent’s contention that contestant should not be prejudiced by the error of the circuit clerk in issuing a wrong summons, “[a] sufficient answer to that is that neither should the contestee be prejudiced by such neglect.” Jones v. Buckley, 425 S.W.2d 204, 207[6] (Mo.1968).

While admitting that contestee moved to dismiss the contestant’s petition on the ground that the court was without jurisdiction, respondent now argues that because contestee failed to raise the defense of insufficiency of process or insufficiency of service of process in the trial court he cannot raise it in this original proceeding. The fact, if it be a fact, that contestee did not raise an objection to jurisdiction because of insufficiency of process, would not confer jurisdiction where none existed. It was the duty of the trial court to ascertain jurisdiction over the person of the contestee before proceeding with the contest action. The court should have ascertained that the summons did not command contestee to appear on August 17 but rather commanded him to appear 30 days after he had been served on August 13 before attempting to proceed in any form to adjudicate the merits of the case. State ex rel. Rakowsky v. Bates, supra, 286 S.W. at 422[7]. And as the five-day period within which the law provides the summons must be made returnable has long since expired, the respondent and the Circuit Court of Scott County have forever lost jurisdiction in the cause. State ex rel. Frazier v. Green, 143 S.W.2d 64, 68[5] (Mo.App.1940).

Our provisional rule in prohibition is hereby made absolute.

All concur.

On Motion for Rehearing or Application to Transfer to the Supreme Court

PER CURIAM:

Prior to filing in this court any motion for rehearing or application for transfer to the Supreme Court, respondent on October 1, 1976, and contrary to Rule 88.02, V.A.M.R., filed in the Supreme Court his “Application for Transfer,” which court, on the same day of filing, denied said application. Thereafter on October 4, 1976, respondent filed in this court his motion for rehearing and an alternative application for transfer. In contradiction of the patent purpose of the motion, the written suggestions and a telegram accompanying it, urged this court, inter alia, to “deny a rehearing and transfer this case to the Supreme Court.” Thus, and in substance, this court was petitioned to oblige the admitted frivolousness of the motion and grant the application in a tacit overruling of the prior denial by the Supreme Court. Albeit we stand willing to accommodate respondent on the motion, we possess neither the authority nor the temerity to grant him succor on the application. Accordingly, respondent’s motion for rehearing and application for transfer are denied.

All concur.

      . The motion to dismiss was based on respondent’s lack of jurisdiction.


author: TITUS, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Norman F. WENDELL, Jr., Defendant-Appellant.
    No. 9983.
    Missouri Court of Appeals, Springfield District.
    Sept. 28, 1976.

      John C. Danforth, Atty. Gen., W. Mitchell Elliott, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Gregory K. Johnson, Springfield, for defendant-appellant.
    Before STONE, P. J., and HOGAN and TITUS, JJ.
   TITUS, Judge.

Defendant was found guilty of two counts of first degree robbery. He was represented at trial by counsel of his own selection and is represented on this appeal 'by different counsel of his choice.

Under points relied on, defendant asserts the trial court erred in permitting the state to show, via cross-examination of him and through the direct testimony of other witnesses, that he had been investigated for, arrested and charged with various crimes which had not resulted in convictions. Defendant likewise contends it was error to permit the state to cross-examine two of his witnesses concerning criminal charges against them which did not result in convictions, and, additionally, asseverates some of the foregoing alleged errors should be considered as plain error under Rule 27.20(c), V.A.M.R.

Defendant, as a witness on his own behalf, testified on direct examination that prior to his arrest on the charges for which he was being tried, he had been stopped, investigated or arrested on various occasions (about seven) by local police officers on charges for which there were no convictions. His then counsel referred to the incidents as “scrapes with the law” and “pumped up” charges; his present counsel opines the testimony was elicited as a trial tactic “to show that these law enforcement officers had in fact been harassing Defendant without just cause.” To be specific, defendant’s present complaint does not go to the arrests he testified to on direct examination. Rather, he says it was error for the state to evoke on cross-examination testimony of other arrests and ■ pending charges which had not been mentioned on direct examination.

A defendant in a criminal cause, as any other witness, may be impeached on cross-examination to show prior convictions to affect his credibility. In usual circumstances, the defendant’s credibility as a witness may be tested only by showing previous conviction — not by showing arrests even though defendant had spoken of prior convictions. State v. Massa, 512 S.W.2d 912, 914[1-3] (Mo.App.1974). Nevertheless, once a defendant tenders the issues of his prior arrests and exposes a claim of harassment, the state on cross-examination is not tied to a categorical review of the exact things stated on direct examination but may inquire as to all matters within the fair purview of the direct examination. State v. Scown, 312 S.W.2d 782, 786-787[2] (Mo.1958). “To refute the claim of police harassment the prosecutor cross-examined the defendant about his [entire] arrest record . . . . To allow defendant to tender the issue of his arrests to show police harassment and to deny the state to put the issue in its proper context, would have the effect of immunizing the defendant from cross-examination on an issue which he raised on his direct examination. This, we refuse to do and, therefore, defendant’s claim of error on this point is denied.” State v. Connell, 523 S.W.2d 132, 135-136[2] (Mo.App.1975).

On direct examination of Deputy Sheriff Jeter (a witness for the state of whose testimony defendant now complains), the following occurred: “Q. Okay. What else did you do in this investigation, sir? A. Well, upon the description that [the victims] had given us, of the car, we had .been watching the subject that drove a ear fitting this description, quite some time. It hung out, out around the Outrigger Club quite frequently. And, this car had been involved in prostitution and narcotics. Q. And who owned that ear, sir. A. (Pause) Wendell. Q. Mr. Norman Wendell [the defendant]? A. Mr. Norman Wendell. [Prosecuting Attorney]: You may inquire . .” Thereafter, defense counsel cross-examined the deputy regarding his “suspicions” and the fact that no charges had been filed against defendant “for narcotics or prostitution.” Another state’s witness of whose testimony defendant also complains was Trooper Wallace. When called as a state’s rebuttal witness this transpired: “Q. And, on the 13th day of May, 1974, Officer, did you place [the defendant] under arrest? A. I did. Q. What did you tell him? A. I advised him that he was under arrest for possession of narcotics, narcotics paraphernalia. Q. Did you at any time mention the word ‘suspicion’? A. No. Q. Did you advise him of his Miranda warnings that evening? A. I did. [Prosecuting Attorney]: No further questions.” Following this, defense counsel cross-examined the trooper and elicited information that when the witness had arrested defendant he “could see narcotics in the car.”

From the above recasting it is obvious that no objections were voiced by defendant to either the questions asked of or the answers given by Deputy Jeter and Trooper Wallace. Moreover, defendant’s motion for a new trial did not allude to the testimony of Deputy Jeter and only mentioned Trooper Wallace’s testimony as being hearsay as it related to recounting what he had been told by an informant. When a defendant at trial does not object to the testimony of a witness and does not present the matter as claimed error to the trial court in a motion for a new trial, such an alleged error is not preserved for appellate review and merits no consideration when presented for the first time in an appellant’s brief. State v. Gant, 490 S.W.2d 46, 49[8] (Mo.1973); State v. Gannaway, 313 S.W.2d 653, 656—657[10] (Mo.1958); State v. Obie, 501 S.W.2d 513, 514[3] (Mo.App.1973); State v. Barker, 490 S.W.2d 263, 275[18] (Mo.App.1973).

Without repeating the testimony of Sheriff Carter, it is enough to note that all of the defendant’s objections to his testimony now complained of were sustained by the trial court and defendant’s single request that the jury be instructed to disregard the testimony was fully accommodated. Defendant did not ask for a mistrial or other relief. When a defendant, as here, receives all of the relief which he asks, no error results, and the court’s rulings and admonitions obviate any prejudicial error. State v. Porter, 458 S.W.2d 256, 260[7] (Mo.1970); State v. Craig, 433 S.W.2d 811, 813[1] (Mo.1968); State v. Granberry, 530 S.W.2d 714, 728[22] (Mo.App.1976); Billings v. State, 503 S.W.2d 57, 60[3] (Mo.App.1973).

Conjunctively with the foregoing, defendant says the trial court erred in permitting the state to cross-examine his two alibi witnesses, Henry and Holloway, anent criminal charges which had not resulted in convictions. The claimed error regarding the cross-examination of witness Holloway was not included in defendant’s motion for a new trial and need not and will not be considered on appeal. Rule 27.20(a), V.A.M.R.; State v. Tilcock, 522 S.W.2d 60, 62[1] (Mo.App.1975).

Defendant’s alibi witness Henry was in the army stationed at Ft. Leonard Wood. On direct examination by defendant’s attorney, this happened: “Q. Are you in any trouble with the local police? A. Not that I know of. Q. Or, in the military? A. No, sir.” During cross-examination by the state this occurred: “Q. And, you say you’re not in military trouble, is that right? A. No, I’m not. Q. , Have you been convicted of any crimes on Post? A. No, I haven’t. Q. Haven’t been convicted of using marijuana? A. I was convicted, but the case was thrown out. Q. You were convicted of using marijuana were you not fined two hundred dollars? A. No, I wasn’t . . . . Q. And if these records are available from the CID Office, they would be in error? [Defendant’s Counsel]: Objection, Your Honor, he may ask if he’s ever been convicted of a crime.” The objection was overruled and thereafter without objection on defendant’s part the witness clung to the paradoxical pronouncement that “I’m saying that I was convicted, but . . . the whole case was thrown out of Court.”

It should be observed that defendant did not object to the cross-examination questions regarding the witness’ “military trouble” or his conviction. The only question objected to by defendant related to the accuracy vel non of the CID records and when the objection was overruled, the witness agreed “they wouldn’t” be in error. We believe the cross-examination of witness Henry was invited by his direct examination (and later cross-examination) denial that he had “trouble” in the military and his insistance on the equivocation that although he had been convicted of a military crime the case, nonetheless, had been “thrown out of court.” If there was any error as alleged relative to the cross-examination of this witness, we fail to perceive it, but even so, we cannot discern prejudice to the defendant under the circumstances.

At last we consider defendant’s claim that it was plain error for the trial court to permit his alibi witness Holloway to be cross-examined about possession of marijuana which did not result in conviction and to permit state witnesses Jeter, Carter, Neal, and Wallace to testify in regard to defendant’s having been arrested, charged and investigated on numerous occasions, none of which had resulted in a criminal conviction. In his brief filed here, defendant candidly admits that none of these alleged errors was properly preserved for appellate review as we have previously observed and decided.

Invocation of Rule 27.20(c) is to be done on a case-to-case basis to avoid “manifest injustice or miscarriage of justice.” It is not to be invoked in every case where it is claimed for the first time on appeal [State v. Meiers, 412 S.W.2d 478, 480—481[1] (Mo.1967)] and the finding of error alone is not enough to cause an appellate court to apply the rule. State v. Watts, 515 S.W.2d 854, 856[2] (Mo.App.1974). Before a court should make application of the plain error rule there must be a sound, substantial manifestation and a strong, clear showing that injustice or a miscarriage of justice will result otherwise. State v. Caffey, 457 S.W.2d 657, 660[4] (Mo.1970).

In the instant case, defendant (a white male) driving a Mustang and accompanied by a black passenger, offered three soldiers a ride to a certain motel. Instead of stopping at the motel, defendant drove past the soldiers’ desired destination and onto a dirt road where the car was stopped. The three soldiers were ordered at gunpoint to “Get out and get on the ground,” and all were thereafter robbed. Two of the victims who testified at trial, unhesitatingly selected defendant’s picture from a photographic line-up and unequivocally identified him as one of the robbers at trial. A Mustang belonging to defendant fit the description of the vehicle used in the robbery. Sometime later, pieces of one of the victim’s billfold and some of its contents were found alongside a roadway where defendant was said to have thrown them. Thus the testimony and exhibits indicate strong evidence of guilt and when guilt is established by overwhelming evidence no injustice or miscarriage of justice will result from refusal to invoke the plain error rule. State v. Hurtt, 509 S.W.2d 14, 15[3] (Mo.1974).

The judgment is affirmed.

All concur.

      . The only inference gleaned from Neal’s testimony that defendant had other arrests and charges came from answers to questions asked of him on cross-examination by defendant’s trial counsel.


author: ALDEN A. STOCKARD, Special Judge.

text:
    Helen L. NAEGER, Respondent, v. Gerald J. NAEGER, Appellant.
    No. 36626.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Sept. 28, 1976.

      David L. Colson, Colson & Wagner, Farmington, for appellant.
    Charles W. Medley, Farmington, for respondent.
   ALDEN A. STOCKARD, Special Judge.

• At the mutual request of Helen L. Nae-ger and Gerald J. Naeger their marriage of seventeen years was dissolved. The trial court awarded maintenance and child support and directed a division of the marital property. The husband has appealed. We affirm.

The trial court awarded custody of the four children of the parties to the wife, respondent, and decreed that the husband pay to respondent the sum of $45.00 per week as support for each child, and $90.00 per week as maintenance for respondent. There is no issue on this appeal as to the award of custody.

Appellant was engaged in the retail sale of mobile homes. In addition to the house in which the parties have lived, other property had been accumulated during the marriage. The marital property was divided by the trial court as follows:

To the Husband
Estimated Value
A trailer sales lot or lots $ 30,600.00 to $ 31,500.00
The stock in C & H Mobile Homes, Inc. $ 44,078.17 to $ 52,649.00
All debts of C & H Mobile Homes, Inc., owed to appellant in amount between $21,000.00 and $30,000.00. (Since appellant owns all the stock in C & H Mobile Homes, Inc., we do not include this amount in determining the total award to appellant.)
General Electric Reserve Account $ 9,737.00
Bank of St. Louis Reserve Account $ 11,004.09
Bank of St. Louis Reserve Account for C & H Mobile Homes, Inc., not reflected in corporate financial statement $ 6,954.24
General Acceptance Corporation Account $ 300.00
Community Federal Savings Reserve Account for C & H Mobile Homes, Inc., not reflected in corporate statement $ 11,213.96
TOTAL: $113,887.46 to $123,358.29
To the Wife
The marital home — valued at $19,500.00 to $35,000.00, but subject to a deed of trust in the amount of $6,958.88 $ 12,541.12 to $ 28,041.12
To the Wife
Forsyth Acres — valued at $31,900.00 to $45,000.00, but subject to a deed of trust in the amount of
$19,500.00 $ 12,400.00 to $ 25,500.00
Household furnishings (No value stated)
Founder’s Mutual Fund Certificate $ 1,105.00
Cash $ 27,920.00
TOTAL: $ 53,966.12 to $ 82,566.12

Appellant was also directed to assign to respondent as trustee for the children several insurance policies, and he is to pay the premiums until each child reaches the age of eighteen years at which time he is relieved of paying one-fourth of the premium due on each policy.

Appellant first contends that the trial court erred in awarding child support in the amount of $180.00 per week, maintenance in the amount of $90.00 per week, attorney fees in the amount of $1,800.00, and “expenses” in the amount of $267.84 “for the reason that said allowances are in excess of [his] ability to pay and in excess of the need of the children at the present time.” The item of “expenses” consisted of “one-half of cash advances by [respondent’s attorney] in [respondent’s] behalf in this action.” Appellant requests that this court enter or direct a judgment “appropriately decreasing such allowances.”

We note that appellant does not contend that the award to respondent for maintenance is in excess of her needs. The charge of excessiveness is limited to the award of child support. In its determination of the amounts for child support the trial court should consider the reasonable needs of the children for food, clothing, the expense of education and medical attention, and the ability of the father at the time the award is made to meet those needs. Larison v. Larison, 524 S.W.2d 159 (Mo.App.1975). In this determination “both his present and past earnings” may be considered, Page v. Page, 516 S.W.2d 537 (Mo.App.1974), but the award is not to be greater than the husband’s ability to pay. McM v. McM, 506 S.W.2d 14, 16 (Mo.App.1974).

Respondent testified at length concerning the needs of the children and what those needs' would cost. The burden of demonstrating error and the incorrectness of the judgment below is upon the appellant. Suesserman v. Suesserman, 539 S.W.2d 741 (Mo.App.1976). However, we find nothing in appellant’s brief in either the statement of facts or in argument concerning the needs of the children or which in anyway indicates that the award for child support is in excess of the reasonable needs. Appellant does not challenge any particular item testified to by respondent, but only asserts in his brief that “The expenses submitted by [respondent] were obviously exaggerated.” This allegation does not prove itself. Appellant has totally failed to demonstrate that the award for child support was in excess of the reasonable needs of the children.

This leaves only the contention that the total award for maintenance, child support, attorney fees, and “expenses” is in excess of appellant’s ability to pay. We note that he does not contend that he should not be required to pay the attorney fees for respondent, or that the award of $1,800.00 as attorney fees is excessive if the total of it and the other awards are within his ability to pay.

Appellant first argues that the court erred in considering evidence of his earnings for the calendar year 1972. Apparently his position is that this was too remote. However, as previously noted, in its determination of appellant’s ability the trial court was entitled to consider past earnings.

We find it extremely difficult to determine from the record appellant’s net worth or his income with any degree of confidence. He owned all the stock in C & H Mobile Homes, Inc. The tax return for the year ending October 31,1973 showed corporate assets in excess of $190,000.00 and sales of $1,042,415.00. The net worth of the corporation as of October 31, 1972 was $52,-649.00 but an operating loss for the following year would reduce that amount to approximately $44,000.00. The corporation was also shown to owe appellant from $21,-000.00 to $30,000.00. For tax purposes it may be important that the money is owed to appellant, but since he owns all the stock of the corporation the value of the debt owed to him would be reflected in the net worth of the corporation. Two bank accounts were carried in the name of the corporation, but appellant asserted that they were his personal assets. They totaled $20,741.02. Appellant also owned one-half interest in Holiday Mobile Homes, Inc., which he sold just prior to the trial for $5,000.00. A personal financial statement filed by appellant with Community Federal Savings and Loan showed his net worth as of October 31, 1973 to be $211,645.54. As a part of that statement the value of the Holiday Mobile Homes stock was listed at $15,000.00. Appellant gave no explanation as to why he sold his stock for $5,000.00.

Appellant’s income is also rather indefinite. The record frequently refers to gross income instead of net income. In appellant’s statement of facts, he makes reference only to an “adjusted income for the calendar year of 1972” of $22,531.00, and to the “gross income” of $11,500.00 for the period January 1, 1974 to October 8, 1974, less approximately $1,500.00 for tax withholding and social security. In his testimony he admitted a “gross income” of $24,-000.00 for the year 1973. He also testified that he set his own salary to be paid from C & H Mobile Homes, Inc., but that since January 1, 1974 to the time of trial, March 27, 1974, there had been a substantial decline in the sales of mobile homes with a resulting reduction of income to the corporation. There were, however, other things shown by the record. Appellant had a personal checking account at a bank at Bloomsdale, and deposits were made by him from June 2, 1972 to October 20, 1973, to-talling more than $48,000.00. He explained that this was a “wash-out account.” As we understand his explanation, he would write a personal check to persons who purchased a mobile home for the furniture or other item taken in on trade, and the purchaser would endorse the check to C & H Mobile Homes as part payment for the purchase of the mobile home. The corporation then would reimburse appellant the identical amount. There is no explanation of what becomes of the personal property and whether a profit or loss results from its disposition. Reference is made in respondent’s brief to a withdrawal of $14,000.00 by appellant from a bank in Nixon, Missouri, supposedly shown by “Ex. JJ.” We find no such exhibit and it is not indexed in the transcript. Also appellant had received one-half of the earnings of Holiday Mobile Homes, and it appears that the total earnings from August 7, 1972 to September 30, 1973 was about $12,000.00.

The total of the awards for maintenance, child support, and the expenses of the litigation appears to be liberal. But, the determination of the amount of maintenance and of child support is a matter resting in the sound discretion of the trial court, Murray v. Murray, 538 S.W.2d 587 (Mo.App.1976), and we review the record only to determine whether that discretion was abused. Fugate v. Fugate, 510 S.W.2d 705 (Mo.App.1974). The burden is, of course, on appellant to demonstrate an abuse of discretion, and in view of the indefiniteness of the record as to appellant’s precise net worth and his actual income, we cannot determine that there has been an “abuse of discretion * * * based upon an erroneous finding and judgment which is clearly against and contrary to facts or the * * * circumstances before the court * * *." Fugate v. Fugate, supra 510 S.W.2d at 707.

Appellant next asserts that the trial court erred in its division between the parties of the marital property. In his point he lists all the property itemized above that was awarded to respondent except the cash item, and he also lists a Shasta camper, a Ford automobile, three motorcycles, and “$10,000.00 cash.” Appellant has listed the items set forth in a judgment entered on October 9, 1974, which was changed by an amended judgment entered on November 8, 1974, and which will be discussed subsequently. He asserts that this division of the marital property is erroneous because it “constituted a clear and manifest abuse of judicial discretion by depriving [him] of the necessary property from which to generate income to pay support for the minor children and ex-wife.” Appellant argues that the taking of the real estate known as Forsythe Acres will serve only to deprive him of the use of the land in conjunction with his business for the production of income to pay support for his family. He also argues that the reserve accounts were used in conjunction with the operation of the business of C & H Mobile Homes, Inc. as well as the Shasta trailer and automobile.

The Shasta trailer, automobile and motorcycles were awarded to respondent with the provision that if appellant did not cause title to be transferred from C & H Mobile Homes, Inc. to respondent within ten days he should pay her specified sums of money. The transfers were not made and the court entered an amended judgment awarding respondent cash in lieu of the motor vehicles. Apparently the trailer, the automobile and the motorcycles are to remain the property of C & H Mobile Homes, Inc.

With five exceptions, none here being applicable, § 452.330 Laws of Mo. 1973, p. 470, defines “marital property” as “all property acquired by either spouse subsequent to the marriage.” The parties apparently agree that all the property affected by the judgment is marital property. In dividing the marital property the trial court is to consider “all relevant facts” including (1) the contribution of each spouse to its acquisition, (2) the value of the property set aside to each spouse, (3) the economic circumstances of each spouse including the desirability of awarding the family home to the spouse having custody of the children, and (4) the conduct of the parties during the marriage. Appellant does not challenge the division of the property on the basis of any of the four items specifically mentioned in the statute. The only contention is the general assertion that some of the property was used in connection with the business of C & H Mobile Homes, Inc. He does not demonstrate in what manner the transfer to respondent of the property would result in disproportionate harm to him.

Our careful study of the 280 page transcript convinces us that the division of the marital property as ordered by the trial court was just and proper when we give due consideration to the four relevant factors set forth in § 452.330.

Appellant’s final contention is that the trial court “had no jurisdiction” to amend the original judgment, dated October 9, 1974, by entering a new judgment on November 8, 1974, because Rule 73.01(c) prohibits an amendment of a judgment “on motion of a party” more than fifteen days after its entry.

Rule 73.01(c), in effect at the time of trial, provided that “Upon motion of a party made not later than 15 days after entry of judgment the court may amend the judgment and opinion.” We first note that we do not know when respondent’s motion to amend the judgment was made or filed. All that is revealed by the transcript is that respondent served notice on appellant’s attorney on November 7 of her intention to have the court consider her motion to amend, and that appellant objected to the court considering the motion, not because it was made more than 15 days after the entry of judgment, but “for failure to give proper notice of hearing to amend.” The trial court then entered an order in which it recited that “having considered the matter” it “amends the Judgment Entry of October 9, 1974 as per Judgment Entry filed.” However, assuming that respondent’s motion was made more than 15 days after the entry of the judgment the trial court, pursuant to Rule 75.01, retained control over its judgment “during the 30 day period after entry of judgment” and it could within that time “for good cause” vacate, reopen, correct, amend or modify the judgment. There is no contention that the court did not have good cause to vacate the previously entered judgment and to enter a new judgment incorporating amendments and changes. The court had jurisdiction to do what it did', if not by reason of Rule 73.01(c), then by reason of Rule 75.01.

The judgment is affirmed.

SMITH, C. J., and NORWIN D. HOUSER, Special Judge, concur.