author: McKAY, Justice.

text:
    James R. SCOGGINS, Jr., Appellant, v. Lillian SCOGGINS, Appellee.
    No. 866.
    Court of Civil Appeals of Texas, Tyler.
    Dec. 11, 1975.

      Thomas W. Pauken, Dallas, for appellant.
    R. Jack Ayres, Jr., Kelsoe, McDonald & Ayres, Dallas, for appellee.
   McKAY, Justice.

This is an appeal from a judgment granting a divorce, approving a property settlement and providing for the custody of two minor children.

At the outset we are confronted with a motion to strike portions of the transcript filed by appellee. The motion to strike is first directed at a document entitled “Motion to Correct Decree of Divorce” alleging that the court’s decree contained erroneous and inaccurate statements concerning events occurring at the trial. The decree was signed by the trial judge on December 19, 1974, and the motion to correct was filed on March 21, 1975. Appellant’s motion for new trial was filed December 27,1974, and was overruled by the court on February 21, 1975, the date of signing, but the order recited that it purportedly was rendered January 31, 1975. Notice of appeal had previously been filed on February 7, 1975. Appeal bond was filed on February 21, 1975. In view of the above facts, if the trial court had not lost jurisdiction to act on such motion, which apparently it did, there is nothing in the record to show such motion was presented to the trial judge, and there is nothing to show any action thereon by him. Rule 376, T.R.C.P., provides, inter alia, that the transcript shall contain “the order of the court upon any motions or exceptions as to which complaint is made.” The motion to strike instrument designated “Motion to Correct Decree of Divorce” is granted.

The next portion of the motion to strike complains of a document entitled “Statement of Facts” and alleges such document was filed in violation of Rule 377(d), T.R.C.P., and should be stricken. The “Statement of Facts” document is a narrative statement made and sworn to by appellant himself concerning the evidence and incidents and proceedings of the trial. Such document does not contain the approval of the counsel for appellee nor of the trial judge and is, therefore, an ex parte affidavit which was not a part of the trial court record. We cannot consider this so-called “Statement of Pacts”, and the motion to strike it is granted.

Complaint is also made by appellee that the instrument in the transcript entitled “Bill of Exceptions” was filed in violation of Rule 372(f), (g), (h), (i) or (j), T.R. C.P., and should be stricken. Section (f) provides that bills of exceptions which are not in the statement of facts “shall be presented to the judge for his allowance and signature.” There is no statement of facts nor are there any findings of fact or conclusions of law in the record. Although this bill of exception was prepared by appellant’s counsel and signed by him on March 20, 1975, with a place for signature of the judge, there was no signature of such trial judge approving or disapproving the bill. So far as the record shows, there was no presentment to nor action by the trial judge. There is no bystander’s bill in the record. Under the above sections of Rule 372, we cannot consider such “Bill of Exceptions” and the motion to strike same is granted. Bills of Exception which have not been approved by the trial court cannot be considered. Burchfield v. Geitz, 516 S.W.2d 229 (Tex.Civ.App., El Paso, 1974, no writ); Dyches v. Ellis, 199 S.W.2d 694 (Tex.Civ.App., Austin, 1947, no writ).

By his points one and two appellant complains that the trial court erred in accepting into evidence and incorporating into its decree of divorce a consent agreement between the parties (which appellant maintains he did not consent to at any time), and in ruling that he is estopped to deny such agreement. There appears in the record an instrument styled “Agreement Incident to Divorce” which was approved as to form by counsel for appellant and appellee, was signed and acknowledged before a notary public by appellant and appellee, and such agreement was made a part of the judgment of the court with respect to the division of the community property and the support of the minor children. The judgment is also approved by the signature of the parties and their counsel.

There is no statement of facts in the record. There are no findings of fact or conclusions of law, and there is no request for them. Without a statement of facts we are unable to determine that appellant did not agree to the “Agreement Incident to Divorce”. The document itself recites the agreement of both parties, and the judgment refers to it as a written agreement and makes it a part of the decree. There is nothing in the record before us which shows that the trial court ruled appellant was estopped to deny the agreement.

Rule 371, T.R.C.P., provides, “The record on appeal shall consist of a transcript and, where necessary to the appeal, a statement of facts.” In the absence of a statement of facts “‘all presumptions consonant with reason are indulged in order to uphold the binding effect of the judgment.” Roberson Farm Equipment Co. v. Hill, 514 S.W.2d 796 (Tex.Civ.App., Texarkana, 1974, writ ref’d, n. r. e.). See cases there cited. We are without any factual basis for determining the validity of the action of the trial court in incorporating the agreement in the judgment. We must indulge the reasonable presumption that the facts before the trial court supported his action. Appellant’s points one and two are overruled.

By his third point appellant says the trial court erred in hearing the case on the merits without prior notice to appellant. In his brief appellant admits he was present at the trial and participated to some extent, but he also relates factual matters which we cannot consider. Appellant also argues that the local court rules were violated in trying the case on the merits on the date it was heard. Without a statement of facts or a bill of exception, we cannot consider these complaints. Kruegel v. Johnson, 112 S.W. 774 (Tex.Civ.App., Dallas, 1908, writ ref’d). A statement of facts of the hearing on motion for new trial is not an adequate substitute for a statement of facts of the trial itself. Hughes v. Hughes, 407 S.W.2d 14 (Tex.Civ.App., Waco, 1966, no writ). This point is overruled.

In points four and five appellant complains that he was denied a court reporter after making a proper request, and that he was denied a jury trial after properly requesting such and paying the jury fee. Appellant argues that he requested a court reporter be present to make a record. Without a statement of facts or a bill of exception, there is nothing in the record on this question for us to consider. Appellant fails to show that he could not obtain a statement of facts by any other means. Whatley v. Whatley, 493 S.W.2d 299 (Tex.Civ.App., Dallas, 1973, no writ); Rules 377, 378, T.R.C.P. For the same reasons as set out above, appellant’s argument that he was denied a jury trial after requesting it and paying the jury fee is without merit. Evidence that the jury fee was paid is found only in appellant’s testimony at the hearing on motion for new trial which may not be used to prove what ought to be in a statement of facts of the trial itself. These complaints were not preserved for review by this court. Hughes v. Hughes, supra. Furthermore the judgment recites, “No jury having been demanded by either of the parties, all matters in controversy, including all questions of fact and of law, were submitted to the court.” As previously noted, appellant approved the judgment with his own signature. These points are overruled. Brady v. Brady, 255 S.W.2d 585 (Tex.Civ.App., Austin, 1953, no writ); Garcia v. Garcia, 444 S.W.2d 207 (Tex.Civ.App., Corpus Christi, 1969, no writ).

Appellant’s sixth point complains that the trial court erred in denying his motion for new trial. This point does not direct our attention to any specific error alleged to have been committed. It is, therefore, not in compliance with Rules 322 and 418, T.R.C.P., and is too general to be considered.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: DUNAGAN, Chief Justice.

license: Public Domain

text:
    Gaudalupe ESPINOSA et al., Appellants, v. Elaine Coleman HUDSON, Appellee.
    No. 876.
    Court of Civil Appeals of Texas, Tyler.
    Dec. 18, 1975.

      James J. Hultgren, Dallas, for appellants.
    Gordon H. Rowe, Jr., J. W. Payne, Gard-ere, Porter & DeHay, Dallas, for appellee.
   DUNAGAN, Chief Justice.

This is a personal injury action wherein Julia Espinosa as next friend sought to recover for personal injuries sustained by her seven-year-old son, Guadalupe Espinosa, and for medical expenses incurred in treating those injuries which he sustained as a pedestrian struck down by an automobile operated by Elaine Coleman Hudson, appel-lee. The suit was tried to a jury which found in answer to Special Issues submitted to it that while the minor plaintiff did fail to cross the street at an intersection crosswalk he was guilty of no negligence proximately causing the accident. The jury found that appellee failed to keep a proper lookout but did not find such failure or any other negligence of hers to be a proximate cause of the accident. The trial court in its charge had instructed the jury that the occurrence could be an unavoidable accident, not proximately caused by the negligence of any party to it.

Appellants filed a motion to disregard the jury findings to Special Issue No. 2 and to hold, as a matter of law, that the improper lookout of appellee was a proximate cause of the accident; but this the trial court refused to do and instead entered judgment, based on the jury verdict, that appellants recover nothing against appellee. Appellants duly filed a motion for new trial, the pertinent parts read as follows:

“(1) That the Court erred in not granting Plaintiffs’ motion to disregard and set aside the jury’s answer to Special Issue No. 2.
“(2) That the Court erred in not granting Plaintiffs’ motion for judgment because the evidence establishes conclusively an affirmative answer to Special Issue No. 2.
“(3) That the Court erred in submitting Special Issue No. 2 because the evidence established conclusively and as a matter of law an affirmative answer to said issue.
“(4) That the negative answer of the jury to Special Issue No. 2 is contrary to the undisputed evidence which establishes conclusively and as a matter of law an affirmative answer to said issue.
“(5) That the negative answer of the jury to Special Issue No. 2 is against and contrary to the great weight and preponderance of the evidence which establishes an affirmative answer to said issue.”

The motion was overruled by the trial court. Prom this adverse action plaintiffs-appellants appealed.

This appeal is before us on two points of error.

Point One: “The trial court erred in failing to grant plaintiffs’ Motion to Disregard findings of the jury to Special Issue Two and grant Plaintiffs’ Motion for Judgment.”
“A. When the evidence is viewed most favorably to the Defendant, (Appellee), there is no evidence to support a jury finding of no proximate cause.”
“B. When the evidence establishes conclusively that the Defendant’s improper lookout was the proximate cause of the collision in question, the Court should find such improper lookout to be the proximate cause of such collision as a matter of law.”

Appellants by their second point of error complain that “The trial court erred in overruling plaintiffs’ motion for new trial and in entering judgment against plaintiffs, because the jury finding that defendant’s improper lookout was not the proximate cause of the occurrence in question was against the great weight of the evidence.”

Appellee testified in her defense as did Adolphus Ray Coleman, her brother, who was riding with her in the front seat. Ap-pellee also read into evidence portions of the deposition of Christine Hernandez, a cousin of Guadalupe Espinosa, who was standing on the porch of the house in front of which the accident occurred. The investigating police officer also testified.

On the question of appellee’s lookout, the general effect of the testimony from the above witnesses was as follows:

Appellee was driving her car in a southerly direction on Harwood Street from downtown Dallas in a sprinkling rain. From and after the last time she stopped (at a traffic light about two blocks from the accident scene), the rain began to get heavier and at the time of the accident it was a real downpour. At the time of the accident Appellee was traveling less than twenty miles an hour because of the heavy rain. Appellee testified that the visibility was impaired by the rain. There was no moving traffic immediately ahead of her and no parked cars on either side of the street. Appellee was looking straight ahead when suddenly Guadalupe Espinosa appeared in front of her car, without her having time to blow her horn, put on her brakes or turn in either direction. The accident happened in the middle of the block and not at an intersection. Guadalupe crossed the street from behind a tall clump of bushes about ten feet back from the curb on the west side of the street. Christine Hernandez described these bushes as being “real big”, thick, coming right up to the sidewalk, and being about twice as tall as she was. She was taller than Guadalupe Es-pinosa. As did Appellee, her brother testified that the pedestrian appeared suddenly in front of the car and that Appel-lee did not have time to take any evasive action, either by braking, blowing her horn, or turning to one side. Appellee’s brother testified he saw Guadalupe Espi-nosa just a split second before the accident and was positive that at that time Guadalupe Espinosa was running. The police officer also testified that Christine Hernandez told him at the scene of the accident that Guadalupe Espinosa left the porch “running across the street.”

By its answer to Special Issue No. 2 the jury failed to find an ultimate issue, proximate cause, to be established by a preponderance of the evidence. Inasmuch as that answer is nothing more than a failure to find an ultimate fact as opposed to an affirmative finding of such a fact, C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191 (Tex.1966), it does not need “evidence” to support it, Smith v. Safeway Stores, Inc., 433 S.W.2d 217 (Tex.Civ.App.-Tyler 1968, writ ref’d n. r. e.), and may be attacked only by points of error which contend (1) that the fact inquired about is established as a matter of law and/or (2) that the answer is against the great weight and preponderance of the evidence. Hatchell & Calvert “Some Problems of Supreme Court Review”, 6 St. Mary’s Law Journal, pages 303, 323-324 (1974).

The general rule in automobile cases is that proximate cause is a question of fact for a jury determination. O’Kelly v. Jackson, 516 S.W.2d 748 (Tex.Civ.App.-Corpus Christi 1974, writ ref’d n. r. e.); Permian Mud Service v. Sipes, 339 S.W.2d 81 (Tex.Civ.App.-Eastland 1960, n. w. h.); Melton v. Tarrant Utility Company, 339 S.W.2d 379 (Tex.Civ.App.-Fort Worth 1960, n. w. h.); Anderson v. Garza, 311 S.W.2d 910, 915 (Tex.Civ.App.-Austin 1958, writ ref’d n. r. e.); Western Development Corp. v. Simmons, 124 S.W.2d 414 (Tex.Civ.App.-El Paso 1939, writ ref’d). It becomes a question of law, only, if the evidence was such that reasonable minds could not differ upon the proposition that such negligence was a proximate cause of the accident. Jessee Produce Co. v. Ewing, 213 S.W.2d 750 (Tex.Civ.App.-Galveston 1948, n. w. h.); Burton v. Billingsly, 129 S.W.2d 439 (Tex.Civ.App.-Amarillo 1939, writ ref’d). A review of the evidence leads us to the conclusion that reasonable minds could differ as to whether or not the negligence of the appellee, Elaine Hudson, in failing to keep such a lookout as a person using ordinary care would have kept, was the proximate cause of the accident.

In determining appellants’ assertion that the jury finding in response to Special Issue No. 2 was against the great weight of the evidence, we are required to weigh all of the evidence and to remand the cause for a new trial if we conclude that the verdict was so against the great weight and preponderance of the evidence as to be manifestly unjust. Traylor v. Goulding, 497 S.W.2d 944 (Tex.1973); Trinity Universal Insurance Company v. Farley, 408 S.W.2d 776 (Tex.Civ.App.-Tyler 1966, n. w. h.). We have carefully examined the entire record and find the evidence to be sufficient to support the jury’s finding to Special Issue No. 2 and that the answer thereto is not so contrary to the weight and preponderance of the evidence as to be manifestly wrong and unjust. Appellants’ points of error are overruled.

The judgment of the trial court is affirmed.

      . “Do you find from a preponderance of the evidence that such failure was a proximate cause of the occurrence in question?
      Answer Yes or No.
      Answer: No.”


author: VANCE, Commissioner.

text:
    Bennie MOORE et al., Appellants, v. C. Leslie DAWSON, Secretary, Department for Human Resources, et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 26, 1975.

      Paul P. Fauri, Appalachian Research & Defense Fund of Kentucky, Inc., Prestons-burg, for appellants.
    David A. Collins, Morehead, for appellees.
   VANCE, Commissioner.

This is an appeal from an order denying a petition for habeas corpus. It brings into question again the proper procedure for initiating and disposing of claims of immediate entitlement (as opposed to long-term or continuing custody) of a child.

The appellants, Bennie and Sarah Moore, are the parents of nine children. Appellants filed a petition for habeas corpus in the Floyd Circuit Court in which it was alleged that the children were illegally in the custody of the appellees as a result of a juvenile court proceeding commenced by the appellees in Martin County, Kentucky, the home of both appellants and their children.

The petition alleged that appellants were not served with process in the Martin County proceedings, had no notice of any hearing thereon and that no order was entered in the Martin County Court transferring custody of the children to the appellees.

It was further alleged that the children now reside in foster homes in Johnson, Floyd, Magoffin and Morgan Counties; that appellees had no lawful authority to have custody of the children and the petition demanded the return of the children to the custody of the parents.

The judge of the Floyd Circuit Court issued a writ which required the appellees to bring the children before the Floyd Circuit Court on July 22,1975, and show cause for detaining them.

The record does not show that any response was filed by the appellees but on July 23,1975, an order was entered in Floyd Circuit Court directing that the writs be issued to the appropriate circuit courts of the counties where the children then resided. On the same day the judge of the Floyd Circuit Court issued a writ commanding appellees to appear before the Johnson Circuit Court with the children Jack Benny Moore, Hoagy Carmichael Moore, John Charles Moore, Ethel Marlene Moore and Felicia Moore and produce authority for detaining them.

The record does not disclose that appel-lees filed any response to this order or that any hearing was held by the judge of the Johnson Circuit Court.

On August 15, 1975, the judge of the Johnson Circuit Court signed the following order which was then filed in the office of the circuit court clerk of Floyd County.

"FLOYD CIRCUIT COURT
CA NO. 11,323
BENNIE MOORE and SARAH MOORE PETITIONERS vs. ORDER C. LESLIE DAWSON, Secretary DEPARTMENT FOR HUMAN RESOURCES and JERRY HISSONG, Commissioner BUREAU FOR SOCIAL SERVICES RESPONDENTS
“This writ of Habeas Corpus came before the Court at Louisa, Lawrence County, Kentucky on the 30th day of July. Entertainment of the issues presented by the Writ would require this Court to determine where to place the children; however, such a determination is more properly to be made at the hearing on the petition for involuntary termination of parental rights. Therefore, this Writ is hereby Overruled.
“Dated this 15 day of Aug., 1975.
“s/s W. D. Sparks_ JUDGE, Johnson Circuit Court”

From that order of the Johnson Circuit Court this appeal is prosecuted. The record is certified by the clerk of the Floyd Circuit Court.

Habeas corpus is a procedure designed for the purpose of effecting a speedy release of persons who are deprived of their liberty. 39 Am.Jur.2d, Habeas Corpus, Section 1. The use of the writ has commonly extended to the determination of questions relating to the custody of infants, especially in situations where the party entitled to custody under an order of court has lost custody for one reason or another and seeks to regain it. Cf. Chamblee v. Chamblee, Ky., 248 S.W.2d 422 (1952).

We have recognized the severe limitations of habeas corpus when applied to child-custody determinations. It is a statutory proceeding in which the only recognized pleadings are a petition and response. KRS, Chapter 419.

In many child custody cases a person who was granted custody of a child by judgment in a divorce action has surrendered custody to another and seeks to regain custody on a petition for habeas corpus. The respondent may desire to obtain an order changing the custody upon the ground that the long-term best interest of the child requires the change but habeas corpus inquires only as to the immediate entitlement. Scott v. Scott, Ky., 445 S.W.2d 871 (1969).

Not only are the issues severely limited in habeas corpus but the action must proceed in the county in which the child is detained and the procedure for appeal is different from the procedure in ordinary cases. KRS 419.030 and 419.130. These limitations have resulted in the instant case in habeas corpus proceedings in Floyd, Morgan, Magoffin and Johnson Counties to determine the custody of children who formerly resided with their parents in Martin County and in an appeal from an order issued by the judge of the Johnson Circuit Court accompanied by a transcript of record certified by the Floyd Circuit Court Clerk.

The problem of providing an adequate forum for the expeditious determination of not only the immediate entitlement to custody of children but also the continuing right has been fully discussed in Scott, supra, and again in Galloway v. Pruitt, Ky., 469 S.W.2d 556 (1971).

Subsequent to our opinions in Scott, supra, and Galloway, supra, the General Assembly has enacted KRS 403.260 relating to jurisdiction and proceedings for the custody of children. The limitations upon jurisdiction stated therein, if applicable to proceedings seeking determination of the immediate entitlement to custody of children, would render circuit courts without jurisdiction in many instances to follow the guidelines laid down in Galloway v. Pruitt, supra. The frequency of problems arising within this area makes it advisable to reexamine the whole subject of child custody litigation.

Litigation concerning the custody of a child may involve the question of immediate entitlement to custody only, the question of continuing, long-term custody only, or it may involve both questions. Under various statutes custody may be determined by circuit courts (KRS 403.260 generally; KRS 199.600 relating to termination of parental rights; KRS 199.470 relating to adoption) and by county courts sitting in juvenile session. (KRS 208.020).

Under KRS 208.020 the juvenile session of county court is granted exclusive jurisdiction of proceedings concerning any child living or found within the county who has not reached his eighteenth birthday (a) who has committed a public offense, (b) who does not subject himself to the reasonable control of his parents, teachers, guardian or custodian, (c) who is an habitual truant from home or school, or (d) who is found to be dependent, neglected, needy or abandoned.

Although subsection (1) of KRS 208.020 purports to grant exclusive jurisdiction to the juvenile session of county court, subsection (6) provides:

“(6) Nothing in this chapter shall deprive other courts of the jurisdiction to determine the custody or guardianship of children upon writs of habeas corpus, or to determine the custody or guardianship of children when such custody or guardianship is incidental to the determination of other causes pending in such other courts; nor shall anything in this chapter affect the jurisdiction of circuit courts over adoptions and proceedings for termination of parental rights. The juvenile court shall have no jurisdiction to make permanent awards of custody of a child, but if the court finds an emergency to exist affecting the welfare of a child, it may make temporary orders for its custody, pending the outcome of proceedings in circuit court to determine its permanent custody. Such orders shall be entirely without prejudice to the proceedings for permanent custody of the child, and shall remain in effect until modified or set aside by the court. Upon the entry of a temporary or final judgment in the circuit court, awarding custody of such child, all prior orders of the juvenile court in conflict therewith shall be deemed canceled.”

The proceedings in juvenile court may be instituted upon the petition of any person. KRS 208.070.

Pursuant to KRS 199.600 circuit courts may terminate the parental rights of parents upon proper showing and declare a child to be a ward of the state and vest care, custody and control of the child in the Department for Human Resources or a licensed child-caring or child-placing agency or institution. So long as the parental rights of only one parent have been terminated the child may not be declared a ward of the state unless with the voluntary consent of the other parent.

Proceedings for termination of parental rights may be instituted upon petition by the Department for Human Resources, any probation officer, any state or local law enforcement officer, any county attorney or commonwealth’s attorney or parent.

KRS 403.260 was enacted as Section 16 of Chapter 182 of an Act of the General Assembly of 1972 entitled “An Act Relating to marriage and divorce.” It establishes the jurisdiction of circuit courts in the county in which a child is permanently resident or is found to make a determination of custody upon the application (1) of a parent or (2) of a person other than a parent but only if the child is not in the physical custody of one of its parents. KRS 403.260(4).

It would thus appear that when a child is in the physical custody of one of its parents, no person can contest custody under KRS 403.260 except the other parent. If a child is in the custody of one or both of its parents but is neglected or dependent any person can initiate a petition under KRS 208.020 and the juvenile session of county court has jurisdiction to make temporary orders concerning custody. In addition a petition to terminate parental rights maybe filed in circuit court pursuant to KRS 199.600 by the proper persons.

A proceeding to determine the question of immediate entitlement to custody as outlined in Galloway v. Pruitt, supra, involves the characteristics of habeas corpus. Such a proceeding shall be initiated in circuit court not as a petition for habeas corpus but as a petition for immediate entitlement to custody. The limitations imposed by KRS 403.260 upon the jurisdiction of circuit courts to determine custody are not applicable to such proceedings. Since the proceedings are in the nature of habeas corpus they will be decided forthwith in circuit court and subject to expeditious review in this court as outlined in Galloway v. Pruitt, supra, wherein we said:

“ * * * Henceforth, a litigant seeking the right to immediate possession of a child may institute an action by filing a complaint asserting legal entitlement to the immediate custody and possession of the child and, by appropriate motion, obtain a forthwith hearing as if the principles of habeas corpus were applicable. The trial judges will accord priority to proceedings of this nature and will deal with the issues expeditiously, within the framework of due process. Injunctive relief may be invoked and the court may, in the exercise of sound discretion, impose such terms and conditions including, but not limited to, the requirement for appropriate bond, as may appear proper in the circumstances.
“Prompt appellate review shall be allowed within the general spirit and purpose envisioned by CR 65.07 and 65.08. Legally unwarranted deprivation of the immediate right to possession of a child shall ipso facto be regarded as irreparable injury for which no adequate remedy exists so far as those precepts relate to injunctive proceedings.”

We recognize that some cases may arise wherein the circuit court will have jurisdiction to determine the question of immediate entitlement to possession of a child yet be without jurisdiction to consider the question of long-term or continuing custody because of the limitations of KRS 408.260. In most cases however the procedure outlined herein will enable one court in one action to settle expeditiously all questions as to both immediate entitlement to custody and the award of continuing custody.

Of course, habeas corpus remains a proper remedy when children are illegally detained or imprisoned but ordinarily custody, as that term applies to children, does not involve detention or imprisonment. When the action is purely one to determine which party is entitled to custody habeas corpus is not a proper remedy.

When an action to determine immediate entitlement to custody is styled “petition for habeas corpus” the trial judge should either (1) deny the petition or (2) order the petition treated as a petition for immediate entitlement and proceed under the principles announced herein.

Although the petition here alleges an illegal detention the petition and the affidavits filed in support make it plain that the Department for Human Resources has obtained the custody of the children and the parents are seeking to regain custody by habeas corpus. This is not a proper use of habeas corpus and the petition was not converted into an action for custody in the manner outlined herein. The denial of the petition for habeas corpus was not erroneous.

The judgment is affirmed.

All concur except REED, C. J., who concurs in the result.


author: MORGAN, Judge. BARDGETT, Judge

text:
    STATE ex rel. Franklin Dale GARRETT, Petitioner, v. James GAGNE, Director of Municipal Correctional Institution, Respondent.
    No. 58853.
    Supreme Court of Missouri, En Banc.
    Nov. 25, 1975.
    Rehearing Denied Jan. 12, 1976.
    James L. Muller and W. J. Dittmeier, Legal Aid and Defender Society, Kansas City, for petitioner.
    James Cleary, Jr., Aaron A. Wilson and Louis W. Benecke, Kansas City, for respondent.
   MORGAN, Judge.

In his petition for a writ of habeas corpus, petitioner alleged that he was being unlawfully restrained of his liberty pursuant to an order of execution and commitment under a judgment of the Municipal Court of Kansas City. The petition was sustained and the writ ordered to issue; the return of respondent was filed; and, after the court determined that “issues of fact” did exist, a Master was appointed to take testimony thereon and report his “findings of fact.” Such findings are of record and the cause has been argued before this court.

The factual background may be summarized, fairly, as follows: petitioner was arrested on February 14, 1974, pursuant to a complaint that he had committed an offense (a sexually related assault) in violation of the City’s General Ordinances; that on April 29,1974, petitioner, without benefit of counsel, entered a plea of not guilty; that, thereafter, a trial was had and the petitioner was found guilty with punishment assessed at confinement for 180 days in a Municipal Correctional Institution; that petitioner posted a cash bond in the amount of $360. and appeal to the Circuit Court of Jackson County for appearance therein on May 31, 1974; that on said date a City Counselor appeared and announced ready for trial but petitioner failed to appear, whereupon, the Circuit Court entered its order and judgment that petitioner’s “appeal is dismissed and the cause is remanded to the Municipal Court for execution.” Some four months later, on September 25, 1974, the Clerk of the Municipal Court wrote petitioner a letter directing that he appear by October 10, 1974, to satisfy the judgment of the Municipal Court. Petitioner complied and the present proceeding was initiated.

Petitioner contends that his detention is illegal for two reasons, asserted in the alternative, to-wit: (1) dismissal of petitioner’s appeal by the circuit court was in violation of § 98.020, RSMo 1969, and Supreme Court Rules 37.84, 22.16, 29.02 and 27.08; and, (2) if the judgment (remand) of the circuit court was proper and not erroneous, the judgment of conviction of the Municipal Court is invalid because “he was tried therein without counsel and without having knowingly and intelligently waived his right thereto in violation of that guarantee of the Sixth and Fourteenth Amendments to the United States Constitution.”

The first point can be resolved by answering one question — does a circuit court, under the existing law, have the discretionary power to dismiss an appeal from a judgment of a Municipal Court and remand the cause for execution of the judgment entered by the latter when the appellant fails to appear in circuit court for de novo relitigation of the original charge?

Those courts which have been called on to consider the question have failed to reach a uniform answer. The divergent results are detailed in 22 C.J.S. Criminal Law § 399, wherein (with footnote references deleted), it is stated, in part:

The appeal, if properly taken and continued in effect, vacates the judgment of the inferior court; as a general rule, a commitment under the inferior court judgment is wrongful and erroneous. Under some statutes, however, the judgment of the inferior court, pending the appeal, remains in full force and effect until it is displaced by the judgment of the court to which the appeal is taken; and if accused does not suspend the execution of the judgment of the inferior court by the execution of a supersedeas bond he must perform it pending his appeal, even though on the appeal his case is tried de novo; and, since the requirement of a peace bond is a preventive remedy, not a part of the punishment, one who was convicted in the inferior court and, in addition to the judgment entered on the verdict, was ordered to execute a bond to keep the peace and in default thereof to be confined in jail for a stated time, should, if the bond is not given, be held in custody for the required time, even though he has appealed the case.
The appeal does not wipe out or annul the judgment of the inferior court so as to render it nonexistent if the appeal is not perfected or is revoked. So, where appellant withdraws his appeal, or the appellate court dismisses it, and sends it back to the justice’s court with a writ of proce-dendo, there is no affirmance or new sentence; the judgment of the justice’s court is left in full force and effect, and under such circumstances, the judgment of the justice’s court should be executed, and commitment in pursuance thereof is valid, even though the dismissal was erroneous.

The opposing views noted in that portion of the text just quoted, and in the cases from the several states cited therein, obviously turn on the effect the filing of an appeal from a municipal court judgment has thereon, i. e., is the same entirely vacated or is it merely stayed? Posed otherwise — is or is not the efficacy of a municipal court judgment entirely destroyed by an appeal therefrom? The answer to the latter, and basic question, has not depended upon any philosophical approach to the problem but upon those statutory provisions and court rules in effect at the time the question was presented. For that reason, nothing would be gained by a detailed review of prior cases within or without this state, and we seek to resolve the validity of petitioner’s confinement under the present law of Missouri.

Section 396.5 of the Kansas City Charter provides: “Appeals may be taken from the municipal court ... to the circuit court in the manner and upon the conditions prescribed by law and rules of the Missouri Supreme Court.”

Section 98.020, RSMo 1969, which is a general statute designed apparently to apply to all municipalities, provides: “Appeals from police courts and for violation of an ordinance of a city, town or village shall be in the nature of a criminal appeal from a magistrate.” This section would indicate that those statutory provisions and court rules applicable to criminal appeals from a magistrate would apply, i. e., Chapter 543, RSMo 1969, and Supreme Court Rule 22. However, resort to such general provisions is not necessary in view of Supreme Court Rule 37, which is specifically designed to control proceedings in a municipal court and the effect of an appeal from a judgment therein.

Rule 37.81 provides: “Execution of the judgment rendered in a municipal court shall be stayed if an appeal is taken and if the defendant is admitted to bail pending the appeal.” (Emphasis added.)

Rule 37.82 provides: “If the defendant is not so admitted to bail pending appeal, he shall remain in custody or be committed to abide the determination of the case in the circuit or other court having jurisdiction of the appeal.” (Emphasis added.)

Thus, in Missouri the answer to the basic question is not difficult to resolve. A mere reading of Rules 37.81 and 37.82 makes it clear that the filing of an appeal alone does not vacate or annul the judgment of the municipal court but merely suspends or stays the efficacy of the same pending a final disposition of the appeal in circuit court. The judgment entered remains in effect until it is displaced by a judgment in the circuit court. Such is evident as shown by Rule 37.82, which calls for continued confinement, absent a bond, under the original judgment.

Petitioner, in arguing otherwise, relies on quotes extracted from two recent decisions of this court. The first is Kansas City v. Henderson, 468 S.W.2d 48 (Mo.1971), in which it was said, 1. c. 51, that the “appeal had the effect of setting aside and nullifying the conviction imposed in the municipal court.” The second is State v. Fields, 487 S.W.2d 560 (Mo.1972), wherein the declaration just noted was quoted, 1. c. 562, with approval. Out of context, the same would tend to sustain petitioner’s position. However, in each case there had been, in fact, a trial at the circuit court level and the reference to an “appeal” in each encompassed the entire proceeding had therein. This writer, as the author of the latter case, is free to suggest that perhaps there are times when it would be better to be redundant and repeat the factual setting wherein each statement in an opinion is made. Not having done so, we can only point out that the question herein considered was not present in either the Henderson or Fields cases, i. e., the effect of the mere filing of a formal appeal. See Kansas City v. Bott, 509 S.W.2d 42 (Mo. banc 1974).

The ultimate question remains. What happens if the appellant fails to appear in circuit court?

One possibility is found in Rule 37.98, which provides, in part, that: “The court . may . . . direct the arrest of a defendant who is at large on bail for commitment ... (1) When there has been a breach of the condition of the bond .” The authority thus authorized, was not exercised and we consider if the remand and dismissal ordered in this case was a viable alternative.

The petitioner was found guilty in the municipal court. Under the existing law, he had available to him another opportunity to establish his innocence, or more accurately, to require the prosecuting authorities to establish his guilt a second time. Such a “two-tiered” approach allowing for de novo relitigation of the charge is solely for the benefit and protection of the accused. In circuit court he maintains his status of innocence until the prosecution shows otherwise; and no burden of “going forward” is placed upon him. Hoelzel v. Kelly, 222 Mo.App. 566, 291 S.W. 1081 (1927). However, by appealing to the circuit court, even in the absence of the obligations created by the bond given, the petitioner did make it incumbent upon himself to appear and make himself available as a defendant at such time as directed. This he failed to do. In the normal procedures involving prosecutions for offenses against society, the law customarily does not force an appeal upon an accused. (Unless specifically called for in certain cases, such as where a death penalty has been imposed.) Absent some reason making it impossible to appear, an accused by his absence evidences his disdain for the law and its legal processes. Thereafter, a complaint that the circuit court did not force upon him any potential benefit to be derived from a de novo proceeding rings hollow. Under statutes and rules not necessarily the same as they now exist, this court in 1856 approved a comparable result in City of St. Louis v. Murphy, 24 Mo. 41. Petitioner obstructed the orderly process of the court to provide a review to which he was entitled but which he made no effort to preserve. We believe the circuit court had the discretionary alternative of dismissing the appeal. Nor are we persuaded by the argument that a trial in circuit court must, of necessity, follow the filing of an appeal. Rule 37.84 contemplates the cooperation of an appellant and provides that in circuit court the “case shall be heard, tried and determined de novo.” The word “shall” therein does not make the same compulsory but only dictates that the review, if there is to be one, shall be de novo. To construe the rule otherwise would negate Rules 37.81 and 37.82 which provide that the municipal court judgment is stayed only. Point one is ruled against petitioner.

For his second point, petitioner challenges the legality of his confinement by asserting that he was convicted in the municipal court without assistance of counsel when he had not knowingly and intelligently waived his right thereto. Reliance is placed on the dictates of Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). In the latter case, the court declared, 1. c. 37, 92 S.Ct. 2012, “that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.”

To resolve the issue, this court appointed one of the most experienced trial judges in the state as Master to hold a hearing and report his findings of fact. Compare State ex rel. Kansas City v. Meyers, 513 S.W.2d 414 (Mo. banc 1974). With the unquestioned absence of counsel, the prosecuting authority had “the burden of coming forward with evidence of waiver,” Morris v. State, 456 S.W.2d 289, 293 (Mo.1970); and, we quote that portion of the “findings” relative to that issue, to-wit:

That before the hearing Judge Spottsville read the charge to petitioner and ascertained, by the admission of the petitioner, that he understood the charge. Judge Spottsville further advised him that he was entitled to be represented by an attorney of his own choosing or if he was unable to afford an attorney the Court would consider appointing a legal aid lawyer for him. Judge Spottsville further told him that the charge appeared serious and that the Court was authorized to impose a fine as high as $500, a sentence to the Municipal Correctional Institution of six months, or both.
That on April 29, 1974, petitioner was a person, aged 26, with a high school education and with no impairment of his intellectual capacity.
That no claim of indigency or evidence of indigency was presented either at the Municipal Court hearing on the charge against petitioner or at the Master’s Hearing on the instant Writ of Habeas Corpus.
That petitioner elected to go to trial in Municipal Court on the subject charge without a lawyer and at the time when he made this election he was aware of the charge against him, of the possible penalty involved, of the fact that he was entitled to be represented by counsel of his choice and of the fact that persons who could not afford counsel were entitled to have one appointed by the Court.
That petitioner was properly advised of his right to counsel before his trial in Municipal Court and knowingly waived it.
That upon trial of the charge petitioner was found guilty and sentenced to 180 days at the Municipal Farm.
That the petitioner was advised of his right to appeal to the Circuit Court, posted a $360 cash bond and filed an appeal.

The record as made sustains the finding of the Master that there was a knowing and intelligent waiver of counsel. Our review of the same reflects that petitioner was twenty-seven years of age, a graduate of a high school and a barber college; that he was employed as a barber or “hair dresser” and had been for six years; that he was not indigent and made no claim that he was; that he fully understood the proceedings and particularly his right to the assistance of counsel. All doubts were removed by petitioner’s own explanation as to why he did not have counsel. While being interrogated before the Master, by his own counsel in this proceeding relative to the precise issue, he testified: “I didn’t do it so I didn’t expect anything really.” Further explanation for waiver was the fact the complaining witness against him had filed previous complaints, and “She just dropped the charges every time.” Point two is ruled against petitioner.

The writ of habeas corpus heretofore issued, is quashed; and petitioner is remanded to the custody of respondent.

HOLMAN, HENLEY, FINCH and DONNELLY, JJ., concur.

BARDGETT, J., dissents in separate dissenting opinion filed.

SEILER, C. J., dissents and concurs in separate dissenting opinion of BARDGETT, J.

BARDGETT, Judge

(dissenting).

I respectfully dissent as to that part of the principal opinion which authorizes the circuit court, in an appeal from a municipal court conviction, to dismiss the appeal and remand to the municipal court for execution of the municipal court judgment and sentence. The principal opinion holds that the circuit court may, on a discretionary basis, either issue a capias and have the defendant brought before it for trial of the cause or dismiss the appeal and remand to municipal court for execution of the sentence because of the failure of the defendant to appear for trial in the circuit court.

In my opinion, the circuit court is not authorized by law to utilize the judgment of conviction and sentence of the municipal court to punish the defendant for failure to appear for trial.

Section 543.310, RSMo 1969, states, inter alia, that “ . . .if the appeal be regularly taken, the cause shall be heard on the merits . . ..” (Emphasis mine.)

Rule 37.84 provides: “After an appeal from a judgment rendered in a municipal court has been entered upon the docket of the circuit or other court having jurisdiction of the appeal, the case shall be heard, tried and determined de novo in such circuit or other court as though the prosecution had originated in such court. If the defendant shall be convicted in such court, the judgment entered upon the finding or verdict shall assess the costs in both the municipal and such other court in the manner provided by law.”

Certainly no one would contend that, if the prosecution had originated in circuit court and the defendant had been admitted to bail pending trial and failed to appear for trial, the circuit judge could, by reason of his failure to appear, find him guilty of the offense charged and on that judgment sentence the defendant. The remedy would simply be to declare a bond forfeiture and/or order the arrest of the defendant.

If section 543.310 and Rule 37.84 mean what they say — a trial in circuit court on the merits the same as if the prosecution originated there — then there is simply no authority to dismiss the appeal and order execution of the municipal court judgment on the grounds that defendant failed to appear for trial.

The principal opinion seems to proceed on the assumption that the trial de novo in circuit court and the right to have the circuit court determine his guilt or innocence is conditioned upon the defendant’s adherence to the conditions of his bond — the obligation under the bond to appear at trial.

Section 543.290, which concerns recognizance on appeal from magistrate court to circuit court in misdemeanor cases, is applicable to appeals from municipal courts to the circuit courts by reason of section 98.-220, RSMo 1969, which states that failure to give recognizance shall not prevent the appeal. The obligation to appear at trial when permitted to be free pending appeal to circuit court is a condition of the recognizance or bond. The breach of that condition warrants the arrest of the defendant. Section 543.290 specifically provides that the magistrate (municipal judge) shall not consider the judgment of the magistrate or costs in fixing the amount of the recognizance but shall only require the recognizance to be sufficient to secure his attendance in circuit court.

Rule 37.98 affirmatively specifies what the court may do if the defendant breaches the condition of his bond — fails to appear at trial — and states that the court may direct the arrest of the defendant. It does not authorize dismissal of the appeal with a consequent execution of the municipal court judgment.

Rule 37.99, which specifies what the court may do when the defendant is rearrested for breach of the condition of the bond, provides: “Upon the entry of the order of arrest provided for in Rule 37.98, a warrant shall be issued by the clerk of the court which shall be directed to any peace officer of this state and executed in any municipality or county in this state. The court shall fix the amount of bail and shall admit the defendant to bail upon defendant furnishing satisfactory security.”

Rule 37.104 provides that when a breach of the condition of the bond occurs, the court shall enter a judgment of default and declare a forfeiture of the bond but also authorizes the court to set aside the forfeiture if justice so requires. The last sentence of Rule 37.104 states, “Further proceedings and process may be had to enforce defendant’s appearance to answer the charge against him after a judgment of default and forfeiture of the bond.” (Emphasis mine.)

The statutes and rules are replete with provisions relating to bonds or recognizances pending trial or pending trial in circuit court on appeal from municipal or magistrate court. The various measures the court may take upon breach of the condition of the bond to appear at trial are also set forth. Nowhere is there any provision in any rule or statute which allows the circuit court to dismiss the appeal with a consequent execution of the magistrate or municipal court judgment because of the defendant’s failure to appear.

To the contrary, all of the provisions in the law and the rules limit the court to the utilization of legal process to secure his presence in court in order to proceed with the trial.

City of St. Louis v. Moore, 288 S.W.2d 383 (Mo.App.1956), was an appeal from a municipal court conviction. The court there said that if the defendant does not appear when the case is called the court may order a capias for his arrest. In Moore the defendant’s attorney appeared in the court of criminal correction at the time the cause was called. The defendant did not appear. Defendant’s attorney moved for a jury trial which motion was overruled and the attorney left the courtroom. The court heard the city’s evidence and the defendant was again found guilty. On appeal to the court of appeals, St. Louis district, the conviction was reversed and remanded to the court of criminal correction for trial for error in denying defendant a jury trial. The court held that appeals from municipal courts shall be heard and tried de novo in circuit court as though the prosecution had originated there. The court also held that the defendant must be present in court for the trial and if he is not present the court can order him arrested.

The principal opinion, in effect, authorizes the same result which Moore held to be contrary to the law of this state by simply dismissing the appeal and allowing the municipal court judgment to be executed without the defendant being present.

This is certainly a drastic penalty for not complying with the condition of the appearance bond. If the legislature or this court (assuming this court had the authority to do so) intended that the circuit judge would have the power to dismiss the appeal and cause the municipal court sentence of six months’ imprisonment to be executed, if the defendant failed to appear for trial, I believe it would have been clearly set forth in a statute or rule.

The principal opinion states that Rule 37.84 contemplates “the cooperation of an appellant” when he takes an appeal to circuit court. Rule 37.84 does not grant the right to appeal. That right is granted by statute, sections 98.030 and 543.290, RSMo 1969, and it is not a matter of grace or discretion to be allowed or refused by any judge. Nor is the exercise of the right to appeal, the maintenance thereof, and the trial de novo incident thereto, conditioned upon the cooperation of the defendant. As shown supra, the circuit court has available all the legal processes to force the presence of the defendant at trial and it is not dependent upon his cooperation.

The principal opinion cites City of St. Louis v. Murphy, 24 Mo. 41 (1856), as a case where this court approved a comparable result although, as stated in the principal opinion, that case was decided under rules and statutes not necessarily the same as they now exist. However, Murphy and the cases following Murphy, set forth infra, expose the serious underlying issue in this case. That issue is whether or not a defendant in a criminal case on appeal in circuit court from a municipal court conviction can be convicted of the offense without being present.

In Murphy the defendant was convicted of a city ordinance violation and fined $50 by the city recorder (apparently the same as a municipal court). Murphy appealed to circuit court and appeared on the day of trial but apparently heeded a call of nature and was absent from court at the time the case was called. The circuit court affirmed the judgment of municipal court on motion of the city attorney. Murphy moved to set aside the affirmance which motion was overruled. The court observed that in appeals from justice courts in civil cases, if the appellant fails to prosecute his appeal, the judgment may be affirmed. The court then held that the court did not err in affirming the municipal court judgment “because the appellant failed to prosecute his appeal when called.” 24 Mo. at 43.

In City of St. Louis v. Fitch, 238 Mo.App. 725, 187 S.W.2d 63 (1945), the defendant had been convicted in municipal court of carrying a concealed weapon in violation of a city ordinance and fined $50. He appealed to the court of criminal correction which is the court which has jurisdiction of appeals from municipal court convictions in the city of St. Louis. The defendant failed to appear for trial in the court of criminal correction so that court heard the city’s evidence, found the defendant guilty, and assessed a fine of $10 from which the defendant appealed. The St. Louis Court of Appeals affirmed the judgment saying that “Section 3843 [now sec. 543.320] evidently contemplates that the court to which an appeal is taken may in a proper case affirm the judgment of the justice, without further trial, as upon the failure of defendant to appear and prosecute his appeal. City of St. Louis v. Murphy, 24 Mo. 41.” 187 S.W.2d at 65. The court also stated that “we have in mind, of course, that a prosecution for the violation of a city ordinance, such as this, is in its nature of a civil action.”

In the subsequent case of City of St. Louis v. Walker, 309 S.W.2d 671 (Mo.App.1958), the St. Louis Court of Appeals overruled City of St. Louis v. Fitch, supra, and pointed out that changes in the law compelled a different conclusion than that reached in Murphy, supra.

In Walker, supra, the defendant was convicted in municipal court of peace disturbance and he appealed and was again convicted in the court of criminal correction and he appealed to the St. Louis Court of Appeals. When Walker’s case was called in the court of criminal correction, his attorney requested a continuance stating the defendant was ill. The motion was denied. Counsel then requested a jury trial and the court stated it would not grant a jury trial unless the defendant was present. The defendant was not present and the court proceeded to hear the city’s evidence and found the defendant guilty and assessed a fine of $300. On appeal the defendant contended the court erred in (1) refusing to grant a request for jury trial and (2) trying the case without the presence of the defendant in court. The court of appeals sustained both contentions. As to the second point the court said at 674-675:

“The court also erred in trying the case without the presence of defendant in court. This point is also ruled by City of St. Louis v. Moore, supra. There we said:
‘Since the case must be retried it should also be noted that the defendant must be present in court for the trial. When the case is called and the defendant is not present the court may then order a capias for his arrest. There is but one exception to the need for the presence of the defendant at the trial and that is where the defendant, charged with a misdemeanor, may request that he be allowed to plead and stand trial while absent from the court. This may be done with the consent of the court and prosecutor. Supreme Court Rule 29.02.’
“But respondent says our ruling in the Moore case is erroneous and contrary to the previous controlling decision of the Supreme Court in City of St. Louis v. Murphy, 24 Mo. 41. In that case, the defendant was tried before the City Recorder for a breach of the peace. Defendant was found guilty and fined $50. He appealed to the St. Louis Criminal Court. On the day the case was set he appeared with his witnesses. During the course of the day he absented himself from the courtroom for a short period to answer the call of nature. During his absence his case was called for trial. Defendant, of course, did not answer, whereupon the court affirmed the judgment of the Recorder. This judgment was affirmed by the Supreme Court which held that such a judgment was authorized by the statute, and that the trial court did not abuse its discretion in refusing to set it aside. In passing on the case, the court said:
‘By the city charter, as amended by the legislature in 1852 and ’53, the recorder has the same jurisdiction as justices of the peace within the limits of the city, in all state cases. He has jurisdiction over all cases arising under any ordinances of the city, subject to an appeal in all cases to the St. Louis Criminal Court; and every such appeal shall be taken and granted in the same manner as appeals are taken from and granted by justices of the peace to the Criminal Court (meaning the Circuit Court) under the general law of the state. Now the statute concerning breaches of the peace (R.C.1945, p. 674, § 15,) allows appeals to the Circuit Court to any person convicted under it. The 20th section of this act (R.C.1845, p. 675) declares, “If the judgment of the justice shall be affirmed, or if, upon a trial in the Circuit Court, the defendant shall be convicted,” etc. Here, then, we see that the law has contemplated that the judgment in these criminal cases, for breaches of the peace, might be affirmed in the Circuit Court on appeal. There is nothing to prevent the same proceeding in the Criminal Court on appeal from the recorder’s court. In appeals from justices of the peace in civil cases, if the appellant fails to prosecute his appeal, the judgment may for that reason be affirmed.’
“At first blush it would appear that the Murphy case is in point and should rule the case at bar. However, by comparing the statutory law as it then existed with the law now controlling a different conclusion must be reached. It will be observed that the court in that case placed its ruling upon the provisions of Section 20, Chapter 94, Revised Statutes of 1845. That section provided: ‘If the judgment of the justice shall be affirmed, or upon a trial in the circuit court the defendant shall be convicted, and any fine assessed, judgment shall be rendered for such fine, and the costs in both courts, against the defendant and his securities.’
“At the present time the procedure in such cases is governed by Supreme Court Rule 22.16, which reads:
‘After a case appealed from a magistrate court has been entered upon the docket of the circuit court in accordance with the provisions of Rule 22.11, the case shall be heard, tried and determined de novo in the circuit court as though the prosecution had originated in such court. If the defendant shall be convicted in the circuit court, the judgment entered upon the finding or verdict shall assess the costs of both the magistrate court and the circuit court in the manner provided by law.’
“It further appears that at the time the Murphy case, supra, was tried the statute requiring the presence in court of an accused in certain cases did not apply to the offense for which Murphy was being tried. Chap. 138, Art. YI, § 14, p. 880, K.S.Mo. 1845. It applied only to indictable offenses. The offense for which Murphy was being tried was by statute expressly declared not to be an indictable offense. Chap. 94, § 1, p. 672, R.S.Mo.1845.
“At the present time we have Supreme Court Rule 29.02 which requires the presence of the defendant in court in such cases except where the defendant is allowed to plead and stand trial while absent from the court, the court and prosecutor consenting thereto.
“Respondent also relies upon the case of City of St. Louis v. Fitch, 238 Mo.App. 725, 187 S.W.2d 63. In that case the defendant had been tried and convicted in the City Court for the violation of a city ordinance. He appealed to the Court of Criminal Correction. When the case was called defendant failed to appear. Notwithstanding the absence of the defendant, the court proceeded with the trial, heard evidence, and entered a judgment of conviction. On appeal, the defendant contended that the trial court was without authority to hear evidence and enter judgment thereon, but should have affirmed the judgment. No point was made that the court proceeded to trial without defendant being present. This court affirmed, holding that, under § 3843 R.S.Mo.1939, Section 543.320 RSMo 1949, V.A.M.S., the trial court could either affirm the judgment of the City Court or try the case de novo. We were in error in approving sub silentio the action of the court in proceeding to trial without the presence of the defendant. This, for the reason that the requirements of Supreme Court Rule 29.02 were a part of the statutory law at that time. § 4054 R.S.Mo.1939, Section 546.030 RSMo 1949, V.A.M.S. And the holding that the court could, under § 3843 R.S.Mo.1939, affirm, without trial, the judgment of the City Court is no longer the law. [Emphasis mine.] Supreme Court Rule 22.16.”

Lest there be speculation that there is a difference between affirming the municipal court judgment and dismissing the appeal with a consequent execution of the municipal court judgment, it should be immediately recognized that both procedures — the conviction of a person of a criminal offense and the execution of the punishment meted out by the municipal court — have precisely the same effect. The court of appeals in Walker saw that this was so and this court should likewise recognize it to be true.

In State v. Norton, 347 S.W.2d 849 (Mo. banc 1961), a bond forfeiture case where the defendant failed to appear at trial in court on a misdemeanor charge, and in State v. Cook, 432 S.W.2d 345 (Mo. banc 1968), an appeal from conviction of defendant in circuit court on a misdemeanor charge where defendant failed to appear for trial (neither case was an appeal from magistrate court), this court held that a person could not be tried for a felony or misdemeanor unless he be personally present except when the accused, in a misdemeanor case, requested and the court and prosecuting attorney consented to a trial in his absence. Norton and Cook cite City of St. Louis v. Walker, supra, with approval.

Therefore, it is the law of this state that (1) a defendant may not be tried for a misdemeanor without being present, State v. Norton, supra, State v. Cook, supra and (2) that a circuit court cannot affirm a municipal court conviction without trial, City of St. Louis v. Walker, supra.

Just as the St. Louis Court of Appeals candidly recognized in Walker that in its Fitch case the court was in error in approving sub silentio the conviction of an absent defendant in circuit court on appeal from a municipal court conviction, this court should candidly recognize that the principal opinion approves sub silentio the conviction of a defendant on appeal from a municipal court conviction without a trial and without being present by the simple device of dismissing the appeal and remanding for execution of the municipal court judgment and sentence.

If a circuit court cannot affirm a municipal court judgment without trial, it cannot legally accomplish the same result by dismissing an appeal regularly taken. To permit this to occur is to approve the circuit court doing indirectly what it cannot do directly.

The principal opinion indicates the petitioner, by not appearing for trial, evidenced disdain for the law and its legal process. It may be that that is his attitude although the transcript of the hearing held by the master does not, in my opinion, necessarily support such a conclusion. The petitioner testified that he knew the date his case was set for trial in circuit court; that there was a death in his family so he called to postpone the case because he had to leave town; that he talked to a lady who told him they didn’t ordinarily take continuances over the phone but that under the circumstances she would try to take care of it and that he would be notified. After that phone conversation took place, the petitioner went to Michigan for the funeral and then just waited for a court date but never received one until he got a paper saying that he should report for execution of the sentence. He then went to the court as instructed in the letter.

The master’s findings of fact No. 13 is “That petitioner did not obtain a continuance of the hearing of his appeal and made no reasonable attempt to do so.”

Clearly the petitioner did not obtain a continuance. But did he make the phone call and receive the information over the phone from the person he spoke with that she would try to take care of it (continuance) and that he would be notified?

As indicated supra, I don’t believe the attitude of the defendant has anything to do with the question as to whether the circuit court has the power to dismiss the appeal and remand for execution of the municipal court sentence. Nevertheless, it is perhaps appropriate to consider the consequences of allowing the attitude of the defendant or the legitimacy of his reasons for not appearing for trial to constitute a basis for dismissing the appeal and remanding for execution of the sentence without any trial.

In this case, if it is a true fact that the defendant did call the circuit or municipal court and did speak with an employee of the court and was told, in effect, that he could go on to the funeral and he would be notified later of a new court date, then that conduct certainly does not show disdain for the court or its processes. Reasonable minds may differ as to whether that was a “reasonable attempt” to obtain a continuance when a layman, not a lawyer, does this. To me it seems reasonable — to others it may not.

In either view, under the principal opinion, some judge would, presumably decide whether or not it was reasonable and, if found not to be reasonable, deny the defendant a trial and imprison him for six months. Would there be a trial on the issue of whether he made a reasonable attempt to obtain a continuance with an appeal following a determination that it was unreasonable? All of this just to decide whether or not to give the defendant a trial on the criminal charge against him.

It may appear at first blush that the disposition authorized by the principal opinion would be simple and efficient. In my opinion, it will lead to a substantial amount of useless tangential litigation, none of which will answer the original and important question, to wit: Is the defendant guilty of the offense charged?

In my opinion, the discussion in the principal opinion with reference to the stay of the municipal court judgment misses the issue. The appeal does not, in itself, prevent incarceration under the municipal court judgment pending the appeal. It is the recognizance or bond that stays execution. Rule 37.81. The issue here is whether he is entitled to a trial on appeal. Rule 37.82 and section 543.290(3), RSMo 1969, both provide that failure to give the recognizance or make bail does not prevent the appeal. In other words, it is the appeal, regularly taken, that entitles the defendant to the trial in circuit court. It is not the stay of execution that gives the defendant the right to circuit court trial.

Rule 37.84 requires that when an appeal is taken from a municipal court conviction and entered upon the docket of the circuit court “the case shall be heard, tried and determined de novo in such circuit . court as though the prosecution had originated in such court.”

Question: If this prosecution had originated in circuit court, could the petitioner have been convicted without a trial and without being present? Answer: No. State v. Cook, supra, State v. Norton, supra.

Question: Did the circuit court hear, try, and determine this case as though the prosecution had originated in that court? Answer: No there was no trial and defendant was not present.

The writ of habeas corpus heretofore issued should, in my opinion, be made absolute; the petitioner should be discharged from the custody of respondent and remanded to the circuit court of Jackson County for trial of the appeal from the municipal court judgment.

For the foregoing reasons, I dissent.

      . Representative cases are: Morris v. Commonwealth, 222 Ky. 400, 300 S.W. 887 (1927) and Thompson v. City of Birmingham, 217 Ala. 491, 117 So. 406 (1928). See 21A Mo.Dig., Municipal Corp., 642(1), 642(2) and Costarelli v. Massachusetts, 421 U.S. 193, 95 S.Ct. 1534, 44 L.Ed.2d 76, 1975.

      . Such general provisions, insofar as of interest here, are consistent with Rule 37. For instance, § 543.290 provides that an “appeal shall operate as a stay of execution” and Rule 22.12 dictates that there “shall be a stay of execution” after an appeal.

      . Petitioner failed to appear for trial on Feb. 21, 1974, in the municipal court as scheduled; his bond was forfeited but later reinstated. Furthermore, for a period of 117 days after the dismissal in circuit court petitioner did nothing to protect or prosecute his appeal.

      . In this case the record reflects petitioner resided at the same address in Jackson County throughout these proceedings. Adherence to this rule would have simply required the arrest of petitioner and afforded a prompt disposition of his appeal on the merits in accordance with the law.

      . Note that the master found that petitioner made no reasonable attempt to obtain a continuance, not that he did not believe petitioner’s account of what transpired.