author: WALTHALL, J.

text:
    SARAGOSA INDEPENDENT SCHOOL DIST. NO. 3 v. COUNTY SCHOOL TRUSTEES OF REEVES COUNTY et al.
    No. 2729.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 20, 1932.
    Rehearing Denied Nov. 10, 1932.
    Howard & Jackson, of El Paso, for appellant.
    Hubbard & Kerr, of Pecos, for appellees.
   WALTHALL, J.

The Saragosa independent school district No. 3, of Reeves county, filed this suit in the district court of Reeves county, against the Balmorhea independent school district No. 4, of Reeves county, the county school trustees of Reeves county, the tax assessor, and the tax collector of Reeves county, alleging that such county school trustees had theretofore entered an order changing the boundary line between said two independent school districts so as to transfer ten sections of land from appellant Saragosa independent school district and place said sections of land in appellee Balmorhea independent school distinct, and caused said order to be certified to the county clerk of Reeves county.

Appellant further alleged that appellee county school trustees of Reeves county were without authority to make such order, and prayed that same be held null and void, and that appellees and each of them be perpetually enjoined and restrained from enforcing said order.

■ Appellees answered, admitting, in effect, that the county school trustees, upon the presentation to such trustees of a proper petition, and after hearing and duly considering same and hearing the evidence from all parties, was of the opinion that said boundary line of said two school districts should be changed, as petitioned, and that said county school, trustees had entered such order as alleged. Appellee answered further, and to which appellant filed a supplemental petition, but we think such further issues are immaterial to the ultimate issue to be determined, and we need not state such issues.

The case was tried to the court without a jury upon an agreed statement of facts, upon which judgment was rendered that appellant, Saragosa independent school district, take nothing by its suit, and denied the injunction prayed for, from which judgment and order appellant duly prosecutes this appeal.

Opinion.

The only question we think to consider is whether the county hoard of trustees had the power and authority under the statutes to change the boundary line between the two independent school districts as it undertook to do.

Appellant, Saragosa independent school district, submits that the authority to change the boundary line between the two independent school districts is, under the statute, resident in the county commissioner’s court only, while appellee contends that the authority to make such change is in the county board of trustees, and not in the commissioners’ court.

No question is made but that, under the agreed statements of facts, the county board of trustees or the commissioners’ court in this proceeding could properly make the change in the boundary line between the two school districts, and we will assume, without considering the facts, that one or the other, as it had the authority, could properly make the change as was made.

There has been, as the law formerly was, a conflict in the holdings of our courts regarding the question of the authority of the county board of trustees and the commissioners’ court to change the boundary line of independent school districts. We think it would be more confusing than enlightening to r.eview the several holdings of the courts under the several articles of the statute as they formerly read. The First Called Session of the Forty-First Legislature (1929), however, by chapter 47, p. 10⅞ (Vernon’s Ann. Civ. St. art. 2742f and note), no doubt haying in mind the confusion then existing as to where the authority should lie to detach territory from one school district and attach it tp another, by section 1 of said chapter (Vernon’s Ann. Civ. St. art. 2742f, § 1), provides:' “In each county of this State the County B.oard of' Trustees .shalj have the authority, when duly petitioned as herein provided, to detach from and annex to any school district territory contiguous to the common boundary line óf the two districts.”

. Then follow in the same section the provisions which authorize the change in the boundary of the school districts to be made. Section 1 of chapter 47 above was amended by chapter 140, Forty-Second Legislature (1931), Reg. Sess., by section la (Vernon’s Ann. Civ. St. art. 2742f, § la), and, while more specific in stating the conditions and provisions under which changes may be made in boundary lines between common and independent school districts, the authority to make changes is given to the county board of trustees.

Appellant in oral argument stated, and in its brief states: “This cause is before this court on one question, and that is, whether pr not the. County Board of Trustees had authority under the law to change the boundary line between the Saragosa and Balmov-hea Independent School Districts.”

The above provision of the statute was in effect at the time the county board of trustees took the action complained of. The above express provision of the law was evidently enacted to more clearly state the law than it formerly was stated, thus giving to the county board of trustees the authority to detach territory from any contiguous district,' common or independent, and which provision leaves no room for controversy as to the authority of the county board of trustees, where all the conditions are present which authorize any change to be made, and which we must assume were present in this case.

Finding no reversible error, the case is affirmed.


source: Caselaw Access Project

author: MARTIN, J.

license: Public Domain

text:
    HART v. WILSON.
    No. 3869.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 21, 1932.
    Rehearing Denied Nov. 9, 1932.

      Perry T. Brown, of Friona, for appellant.
    J. D. Thomas, of Farwell, for appellee.
   MARTIN, J.

Appellee sued and obtained judgment in justice court against appellant for $151.64. Upon appeal to the county court appellee’s recovery by judgment against appellant was the sum of $131.64, from which judgment he appeals to this court, presenting as error the refusal of the trial court to sustain a general demurrer and an exception to the admission of evidence because of insufficient pleadings. We regard the two points as identical.

We find in the record a written petition, but no showing pro or eon as to oral pleadings.

The pleadings in justice and county court in cases of this character may be oral. Article 23S8, Verno'n’s Ann. Civ. St., and notes under this article. Also first case cited below.

Where written pleadings are filed, it is permissible to supplement the same by oral amendments. Heidenheimer, Strassburger & Co. v. Houston & T. C. R. Co. (Tex. Civ. App.) 197 S. W. 886. We will presume in this court, in the absence of a showing to the contrary, that the written pleadings were supplemented by such oral amendments as cured any claimed defect therein. Heidenheimer, Strassburger & Co. v. H. & T. C. R. Co., supra; Clonts v. Johnson, 116 Tex. 489, 294 S. W. 844, 848. The presumption we indulge in support of the reco'rd takes any merit out of the point attempted to be made by appellant, and we regard any further discussion unnecessary.

The judgment is affirmed.

On Motion for Rehearing.

In deference to a very earnest motion for rehearing filed by appellant, we have concluded to make these further additional observations :

It is vigorously argued that the original opinion " was erroneous, and in support of this contention the following quotation is given from the case of Silberberg v. Trilling, 82 Tex. 523, 18 S. W. 591, 592: “Although not required to do so, appellants answered in the justice court in writing, and set up their defenses. There were no defenses entered on the justice’s docket, and we can only look to their written pleadings.”

Since appellant’s pleadings in this case were in writing, it is insisted that this case and some others of similar import are in conflict with our holding herein. Examining the facts of the above case, it will be noted that the quoted language was used in reply to appellant’s contention the effect of which was that the appellate court should presume that oral pleadings of a particular defense were made in the lower court and so presuming the judgment was erroneous. There is a manifest difference between . presumptions which give validity to judgments and those which render them invalid. The former may be indulged, but not the latter.

This ease was referred to by Judge Speer in the Clonts et al. v. Johnson Case, cited in the original opinion, in the following language: “Under the law they are permitted to be orally stated, and presumptively they were so stated, and neither court is shown wrongfully to have assumed jurisdiction of the case.” Citing this authority. Quoting further: “It could not be presumed to be supported by pleadings, for that presumption of law is one of regularity and not irregularity. * * * In the absence of evidence showing what the pleadings were in the justice court or in the county court as to that, on appeal from the justice court where the trial is de novo, there is a presumption that the pleadings were oral.”

Speaking in this ease of the manner'in which oral pleadings may be shown in the appellate court, Judge Speer states they “can only appear by agreement, or testimony in the record, or be evidenced by a proper bill of exceptions.”

In the instant case appellant took a formal bill of exception to the testimony of a witness which, omitting its formal parts, is in the following language: “While the plaintiff M. M. Wilson was testifying in his own behalf he was asked the question if he had filed his account for services rendered the defendant with the county clerk of Parmer County and had presented a-duplicate of said account to the defendant; to which question the defendant. Hart then and there in open court objected for the reason that there was no pleadings to support such question and answer and the Court overruled said objection. Thereupon the witness answered Wes.’ ”

Since the pleadings might be oral or partly oral and partly written, this bill is manifestly defective in failing to state and have certified by the trial court as a fact that there were no oral pleadings upon which such evidence could be based. Objections which contain a statement of a fact do not prove' themselves. In such cases there should always be incorporated in the bill of exception such matters as evidence the truth" of the objection. This has been held in many authorities. 3 Tex. Jur. 468, § 330, and authorities there collated. See San Antonio & A. P. R. Co. v. Lester (Tex. Civ. App.) 84 S. W. 401; Gause-Ware Funeral Home v. McGinley (Tex. Civ. App.) 41 S.W.(2d) 433; Schebesta v. Stewart (Tex. Civ. App.) 37 S. W.(2d) 781; Vernon’s Ann. Civ. St. art. 2237, note 37 for full collation of authorities.

In view of the many hills of exception coming to the appellate courts in the same condition as this one, we have extended the length of this opinion to particularly point out its defect for the benefit of the members of the bar.

Believing that the law requires us to presume in support of the validity of the judgment herein that appropriate oral pleadings existed, in the absence of a contrary showing by appellant, the motion for rehearing is denied.


author: HICKMAN, O. J.

text:
    SPRINGFIELD FIRE & MARINE INS. CO. v. HASSEN.
    No. 987.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 14, 1932.
    Rehearing Denied Nov. 18, 1932.
    Thompson, Knight, Baker & Harris and Pinkney Grissom, all of Dallas, for plaintiff in error.
    Conner & McRae, of Eastland, for defendant in error.
   HICKMAN, O. J.

This is a suit upon a policy of fire insurance issued by plaintiff in error to defendant in error for the sum of $3,099, so itemized as to distribute $2,000 thereof on a stock of merchandise and $1,000 thereof on furniture and fixtures. A fire occurred, burning some of the property out of sight and damaging the remainder. There are so many unrelated questions presented that a discussion of all of them, and a statement sufficient to disclose how each arose, would cover many pages of unprofitable reading. We shall therefore discuss those questions only upon which a reversal of the judgment below will be ordered, making such statements in connection with each as are necessary for an understanding of the points decided.

The policy contained this provision: “This entire policy, unless otherwise provided by agreement indorsed hereon or. added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy.” There was an agreement elsewhere in the policy permitting a total concurrent insurance of $65,000, as follows: $60,000 on stock and $5,000 on furniture and fixtures. Defendant in error admittedly violated this provision limiting the amount of insurance by carrying policies totaling $6,000 on the furniture and fixtures. There was no violation with reference to the amount of concurrent insurance permitted on the stock of merchandise. Shortly after the fire occurred, and before plaintiff in error and the other insurance carriers took any steps toward ascertaining the cause of the fire and the amount of the loss, an instrument in writing was executed by the parties hereto designated as a nonwaiver agreement. The substance of the agreement was that plaintiff in error did not waive any of its rights under the terms of the policy by its action in investigating the cause of the fire, the amount of loss, or other matters relative to the claim of defendant in error. Plaintiff in error pleaded defendant in error’s violation of the concurrent insurance provision of the policy as a defense to liability, and defendant in error pleaded a waiver by insurer of its right to rely «pon the forfeiture provision, and sought to avoid the effect of the nonwaiver agreement by allegations that same was procured through fraud. In answer to a special issue, the jury found that such agreement was procured through fraud, and it is assigned that there was no evidence warranting the submission of the issue or supporting the finding of the jury. We sustain this assignment. There is nothing to write in disposing of this assignment further than that there was no evidence of fraud pointed out in the briefs, and we have discovered none in the statement of facts.

It would appear from the record that the parties would have been able to agree on the amount of damages to the furniture and fixtures had it not been for their inability to agree upon the damages to the stock of goods. Their failure to agree on the last-named item resulted in an arbitration proceeding as provided by the policy. Upon the trial, the defendant in error was relieved from the binding effect of this arbitration by a jury finding of partiality and unfair dealings on tbe part of the umpire and one of the appraisers. It is assigned that there was no evidence authorizing the submission of the issue to the jury as to the appraisers being disinterested, or as to the fairness of their proceedings. We are not satisfied with the evidence supporting the answers of the jury to these issues, but have decided that wé cannot sustain the assignment that there was no evidence .warranting their submission.

The agreement for submission to appraisers of the question of the amount of damages to the stock of merchandise contained a non-waiver stipulation similar to that described above, the effect of which was to prevent the •appraisement proceedings from resulting in a waiver of the rights of the parties under the ■policy. To avoid the effect of his violation of the provision of the policy with reference to concurrent insurance, the insured pleaded What he designates as a waiver and estoppel, dlleging that the acts and conduct of plaintiff in error constituted a waiver of its right .to rely upon the forfeiture provision of the contract, notwithstanding these nonwaiver agreements, and that because of such acts and conduct the insurer was estopped to rely upon such forfeiture provision. The issues of both waiver and estoppel were submitted to the jury,' in answer to which issues the jury found that insurer did not waive, but that it was estopped.

It is assigned that there was no evidence of an estoppel. We are unable to understand how’ the jury could have determined that the facts were insufficient to constitute waiver, but were sufficient to work an estoppel. All the facts pleaded and proved had reference to a waiver, and the pleader used the words “waiver” and “estoppel” interchangeably. There is a total absence from the record of any facts which would constitute an estoppel as distinguished from a waiver. The findings sepm to be conflicting. Some Of the evidence did tend to establish á waiver, notwithstanding the nonwaiver agreements, but the jury has determined that it was insufficient for that purpose, and we hold that it was insufficient to raise the issue of estoppel.-

In explanation of our statement above that there was some evidence of a waiver, notwithstanding the nonwaiver agreements, we think it proper, in view of another trial, to observe that the stipulations in the nonwaiver agreement will not be extended by implication beyond their exact terms. Acts not coming within the plain import of the nonwaiver agreements may operate as'a waiver.

Some errors were committed in the admission of evidence, as pointed out in assignments of error Nos. 49, 50, and 51, but these will not likely occur upon another trial, and need not be discussed.

For the errors above pointed out, the judgment of the trial court will be reversed, and the cause remanded.


author: LATTIMORE, J.

text:
    Howard J. ARMER v. STATE.
    No. 15514.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    Dailey & Keller, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for unlawfully carrying a pistol; punishment, niriety days’ confinement in the county jail.

The record is here without statement of facts or bills of exception. We perceive no error.

The judgment will be affirmed.


author: MORROW, P. J.

text:
    Marvin BROWN v. STATE.
    No. 15628.
    Court of Criminal Appeals of Texas.

      Oct. 19, 1932.
    T. C. Burroughs, of Dallas, for appellant.
    -Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

Robbery is the offense; penalty assessed at confinement in the penitentiary for a period of five years.

The indictment appears regular and regularly presented. We have perceived no departure from the legal procedure in the conduct of the trial. A postponement or continuance was sought because of the absence of certain witness, .but no bill of exception was preserved to the action of the court in refusing to continue the case. The motion for new trial presents no matters of law or fact that can be considered in the absence of a statement of facts.

Finding no error in the record authorizing a reversal, the judgment is affirmed.


author: DATTIMORE, J.

text:
    Jack CARTER v. STATE.
    No. 15682.
    Court of Criminal Appeals of Texas.
    Nov. 9, 1932.
    W. W. Ballard, of Wichita Falls, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   DATTIMORE, J.

Conviction for robbery; punishment, life imprisonment in the penitentiary.

In this case appellant was charged with the robbery of a person named, by means of an assault and violence. In the indictment it was alleged that at a time prior to that of the instant robbery appellant had been legally and finally convicted of another similar oifense, the offense of robbery. The matter was properly submitted to the jury, and they found that appellant was guilty in the instant case, and that he had been formerly convicted. The punishment was fixed as above stated. There is in the record no statement of facts or bills of exception.

The judgment will be affirmed.

HAWKINS,'!., not sitting.


author: CHRISTIAN, J.

text:
    F. H. COLEMAN, alias Shine Coleman, v. STATE.
    No. 15614.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    Moore & Wilson, of Amarillo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is selling intoxicating liquor; the punishment, confinement in the penitentiary for one year.

No statement of facts is brought forward. We are unable to appraise the bill of exception embraced in the record in the absence of a statement of facts.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


text:
    Barney CRAVER v. STATE.
    No. 15701.
    Court of Criminal Appeals of Texas.
    Nov. 9, 1932.
    John B. Henderson, Jr., of Marshall, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

•The offense is the unlawful possession of intoxicating liquor for the purpose of sale; penalty assessed at confinement in the penitentiary for two years..

Upon the written request of the appellant, duly verified by his affidavit, the appeal is dismissed.

HAWKINS, J., not sitting.


text:
    L. C. DAVIS v. STATE.
    No. 15608.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    W. B. Howard, of Childress, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   DATTIMORE, J.

Conviction for robbery; punishment, twelve years in the penitentiary.

Appellant and his wife were indicted for robbery. Appellant alone was tried in the case before us. We find neither statement of facts nor bills of exception in the record.

No error appearing, the judgment will' be affirmed.


text:
    Elmer DILLINGHAM v. STATE.
    No. 15467.
    Court of Criminal Appeals of Texas.
    Oct. 12, 1932.
    John Payne- and R. T. Oorrell,- both of Per-ryton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is burglary; the punishment, confinement in the penitentiary for two years.

Upon the written request of appellant, duly verified by affidavit, the appeal is dismissed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of-Criminal Appeals and approved by the court.


text:
    Johnnie DURHAM v. STATE.
    No. 15553.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    T. O. Murray, of McKinney, for appellant.
    Lloyd- W. Davidson, State’s Atty., of Austin, for the State.
   DATTIMORE, J.

Conviction for transporting intoxicating liquor; punishment, one year in the penitentiary.

The record is here without statement of facts or bills of exception. The indictment appears regular, and is followed -by the charge of the court, the judgment, and sentence. •

No error appearing, the judgment will be affirmed.


author: CALHOUN, J.

text:
    Clarence EDWARDS v. STATE.
    No. 15606.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    Rehearing Denied Nov. 23, 1932.
    John T. Buckley, of Longview, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense, assisting in forgery; the pun-, ishment, five years in the penitentiary.

No statement of facts is brought forward. We find in the record several bills of exception, which we are unable to appraise in the absence of a statement of facts. No defect either in the- indictment or procedure has been pointed out or has been perceived. No question is presented for review.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


text:
    Henry FISHER v. STATE.
    No. 15688.
    Court of Criminal Appeals of Texas.
    Nov. 9, 1932.
    Krueger & Sullivan, of Bellville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for murder; punishment, five years in the penitentiary.

We find with the record an affidavit duly executed by the appellant asking that his appeal be dismissed. The request is granted.

The appeal is dismissed.

HAWKINS, J., not sitting.


author: HAWKINS, J.

text:
    Manuel GONZALES v. STATE.
    No. 15670.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    Erank E.,Smith, of Abilene, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for murder; punishment assessed being five years in the penitentiary.

Appellant has filed in this court his affidavit to the effect that he desires to withdraw his appeal, and in compliance with such request the appeal is dismissed.


text:
    Chestene HANCOCK v. STATE.
    No. 15664.
    Court of Criminal Appeals of Texas.
    Nov. 9, 1932.
    Mathis & Mathis and R. G. Allen, Jr., all of Houston, for appellant.
    O’Brien Stevens, Dist. Atty., and E. T. Branch, both of Houston, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is burglary; penalty assessed at confinement in the penitentiary for two years.

Neither bills of exception'nor statement of facts accompany the record.

In the motion for new trial, appellant complains of some arguments charged to have been made. The complaint, however, is not supported by any bills of exception.

No error having been perceived, the judgment is affirmed.

HAWKINS, J., not sitting.


text:
    Roy HENDERSON v. STATE.
    No. 15517.
    Court of Criminal Appeals of Texas.
    Oct. 12, 1932.
    J. H. H. Dennis, of Wharton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense,. extortion; the punishment, confinement in the penitentiary for ten years.

Affidavit in proper form has been filed by appellant asking this court to dismiss his appeal.

The motion is granted, and the appeal dismissed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by' the judges of the Court of Criminal Appeals and approved by the court.


text:
    Buddy HOARD v. STATE.
    No. 15622.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    N. D. Heaton, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is aggravated assault; penalty assessed at confinement in the county jail for a period of sixty, days.

Upon the written request of the appellant, duly verified by his affidavit, the appeal is dismissed.


text:
    Jack HOLLIS v. STATE.
    No. 15681.
    Court of Criminal Appeals of Texas.
    Nov. 9, 1932.
    R. S. Ragsdale, of Burkburnett, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is burglary; penalty assessed at confinement in the penitentiary for three years.

The indictment and procedure appear regular. No criticism of the trial is brought forward for review by bills' of exception or otherwise. The record is here without a statement of the facts heard upon the trial.

Some criticism of the procedure is made in the motion for new trial, but it is supported ■by no facts or bills of exception. Nothing is perceived which would authorize an annulment of the verdict.

In preparing the sentence, the court failed to give the appellant the benefit of the Indeterminate Sentence Law (article 775, Code Cr. Proc. 1925), under the terms of which the appellant should be condemned to suffer confinement in the state penitentiary for a period of not less than two nor more than three years.

As reformed, the judgment is affirmed.

HAWKINS, J., not sitting.


text:
    H. A. JENKINS, alias Hence Jenkins, v. STATE.
    No. 15508.
    Court of Criminal Appeals of Texas.
    Oct. 12, 1932.
    Ross Huffmaster, of Kaufman, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is burglary; the punishment, confinement in the penitentiary for two years.’

Upon the written request of appellant, duly verified by affidavit, the appeal is dismissed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


text:
    J. C. NEWTON v. STATE.
    No. 15613.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    E. M. Chaney, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

Theft, a misdemeanor, is the- offense; penalty assessed at a fine of $10 and confinement • in the county jail for a period of thirty days.

There are no bills of exception and no statement of facts. The motion for new trial raises no questions that can be considered in the absence of a statement of facts or bills-of exception.

The judgment is affirmed.


text:
    Cap OWENS and Elmer Owens v. STATE.
    No. 15541.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    J. R. Creighton and John W. Moyers, both of Mineral Wells, for-appellant ,
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The conviction is for murder; penalty assessed at confinement in the penitentiary.

The appellants were charged by an indictment regularly presented with the murder of William E. Williams. The evidence heard upon the trial is not brought up for review. The proceedings appear regular. There are no bills of exception in the record.

Appellants were tried together and each convicted in a separate verdict, and a penalty assessed at confinement in the penitentiary for three years against each of them. The judgment and sentence fail to take note of the Indeterminate Sentence Law, prescribed by article 775, C. C. P. (as amended by Acts 1931, c. 207, § 1 [Vernon’s Ann. O. O. P. art. 775]). The judgment will be reformed so that each of the appellants will be ordered to suffer confinement in the penitentiary of the state of Texas for a period of not less than two nor more than three years.

As reformed, the judgment against each of the appellants is affirmed.


text:
    H. C. PIERSON v. STATE.
    No. 15709.
    Court of Criminal Appeals of Texas.
    Nov. 9, 1932.
    Jim H. Letts, of Houston, and R. M. Wash-burn, of Gladwater, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for selling intoxicating liquor; punishment, one year in the penitentiary.

We find in the record neither statement of facts nor bills of exception. The indictment, the charge of the court, the judgment, and sentence appear regular.

The judgment will be affirmed.

HAWKINS, J., not sitting.


author: . MORROW, P. J.

text:
    Albert SHELTON v. STATE.
    No. 15694.
    Court of Criminal Appeals of Texas.
    Oct. 26, 1932.
    Tom L. Walker, of Nocona, for appellant. Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   . MORROW, P. J.

Unlawfully selling intoxicating liquor is the offense; penalty assessed at confinement in the penitentiary for one year.

Upon the written request of the appellant, duly verified by his affidavit, the appeal is dismissed.


text:
    Marion SMITH v. STATE.
    No. 15585.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    A. L. Curtis and Tyler, Hubbard, Countess & White, all of Belton, for appellant.
    • Lloyd W. Davidson, State’s Atty., of Austin, for the State. •
   LATTIMORE, J.

• Conviction for theft of chickens; punishment, a fine of $105.

The record is here without statement of facts or bills of exception. The indictment appears regular, and is followed by the charge of the court, the judgment, and sentence.

No error appearing, the judgment will be affirmed.


text:
    Pick SMITH v. STATE.
    No. 15710.
    Court of Criminal Appeals of Texas.
    Nov. 9, 1932.
    W. Murry Butler, of Tyler, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for possessing intoxicating liq uor; punishment, one year in the peniten tiary.

The record is here without any statement of facts or bills of exception. The indictment, the charge of the court, the judgment, and sentence appear regular.

The judgment will be affirmed.

HAWKINS, J., not sitting. '


text:
    Walter TODD v. STATE.
    No. 15708.
    Court of Criminal Appeals of Texas.
    Nov. 9, 1932.

      Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The possession of intoxicating liquor for the purpose of sale is the offense; penalty assessed at confinement in the penitentiary for one year.

No irregularity in thé presentation of the indictment nor in the manner of trial has heen perceived. No matter has been pointed out by bills of exception which would constitute reversible error. The facts heard in the trial court are not brought up for review.

The judgment is affirmed.

HAWKINS, J., not sitting.


text:
    Ex parte M. A. TOOKE.
    No. 15668.
    Court of Criminal Appeals of Texas.
    Oct. 12, 1932.
    Rehearing Denied Nov. 23, 1932.
    Dailey & Keller, of Dallas, for appellant
    Lloyd W. Davidson, State’s Atty., of Aus tin, for the State.
   CHRISTIAN, J.

This is an appeal from an order of the district court remanding appellant to custody after a hearing on a writ of habeas corpus.

No statement of facts is brought forward. An examination of the record discloses that no question is presented for review^

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


author: MORROW, P. 7.

text:
    Thomas WARD v. STATE.
    No. 15716.
    Court of Criminal Appeals of Texas.
    Nov. 9, 1932.
    A. R. Rucks, of Angleton, for appellant. Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. 7.

The offense is assault with intent to murder; penalty assessed at confinement in the penitentiary for a period of five years.

Neither bills of exception nor statement of facts accompany the record.

Nothing has been perceived which would warrant this court in interfering with the conviction.

The judgment is affirmed.

HAWKINS, J., not sitting.


text:
    Manuel WATKINS v. STATE.
    No. 15525.
    Court of Criminal Appeals of Texas.
    Oct. 12, 1932.
    H. A. Cline, of Wharton, and S. C. Cappel, Jr., of El Campo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense, murder; the punishment, confinement in the penitentiary for five years.

On the 11th day of July, 1932, the appellant filed his written intention to abandon his appeal and requested the court to enter an order dismissing it. This court having adjourned for the term at that time precluded its making any official entry dismissing the appeal.

Affidavit in proper form has been filed by appellant asking this court to dismiss his appeal.

The motion is granted, and the appeal dismissed.

PER CURIAM.

• The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


text:
    Caselton WHITFIELD v. STATE.
    No. 15392.
    Court of Criminal Appeals of Texas.
    Oct. 26, 1932.

      J. E. Edmondson, of Bellville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is murder; the punishment, death.

It was charged in the indictment, in substance, that appellant, with malice aforethought, killed Oscar Holiday by shooting him with a gun. Appellant pleaded guilty, f'pon the trial, the state introduced appellant’s voluntary confession. Further, the testimony of the state was, in substance, as follows: Deceased owned an automobile. Shortly before his disappearance deceased was seen sitting in his automobile near appellant. Appellant was the last person seen with deceased. About the time deceased disappeared, appellant borrowed a shotgun. Later he borrowed a shovel. Immediately after the disappearance of deceased, appellant drove the car of deceased to Houston. He was in possession of deceased’s car when he was arrested. Not long after the homicide, the body of deceased was found buried in some sand. It was positively identified by witnesses as being the body of Oscar Holiday, the deceased. Many wounds were on the body, which witnesses testified were gunshot wounds.

We deem it unnecessary to set forth appellant’s confession.

No bills of exception appear in the record.

The evidence being sufficient to support the conviction, the judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


text:
    Bill WINN v. STATE.
    No. 15590.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    W. M. Taylor and Thomas & McDonald, all of Big Spring, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

Robbery is the offense; penalty assessed at confinement in the penitentiary for ten years.

We find in the record no statement of the facts heard in the trial court; nor is there brought forward any complaint of the rulings of the court by bill of exception or otherwise.

In the motion for new trial there is some criticism of the procedure, including the complaint of the charge of the court. The criticisms of the charge, however, are not supported by exceptions, as required by law; nor are the matters of fact set up in the motion for new trial supported by any statement of fact or otherwise verified so as to make the averments available before this court as a basis for review.

Perceiving nothing in the record authorizing a reversal, the judgment is affirmed.


text:
    Will WRIGHT v. STATE.
    No. 15626.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    W. H. Blanton and Dwyer & Groce, all of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for robbery; punishment, five years in the penitentiary.

Appellant was charged with robbery by the use of firearms. He made a motion to quash the indictment. He asked one special charge, which was given. He made a motion for new trial, which was overruled, but no complaint is made by bill of exception of any proceeding, nor is there in the record a statement of facts.

No error appearing, the judgment will be affirmed.


author: SMITH, J.

text:
    AMERICAN FRUIT GROWERS, Inc., Appellant, v. G. H. SUTHERLAND, Appellee.
    No. 8871.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 12, 1932.
    Seabury, George & Taylor, of Brownsville, Cunningham & Rabel, of Harlingen, and Harry S. Dunmire, of Pittsburgh, Pa, for appellant.
    Jesse G. Foster and A. B. Crane, both of Raymondville, for appellee.
   SMITH, J.

In this case the trial court sustained appel-lee’s general demurrer to appellants’ plea of privilege, and overruled said plea without hearing any evidence, as was done in the companion case of American Fruit Growers, Inc., v. Sutherland (Tex. Civ. App.) BO S.W.(2d) 898, and American Fruit Growers, Inc., v. Luttring (Tex. Civ. App.) 50 S.W.(2d) 901. The pleadings, pleas of privilege, controverting affidavits, and the procedure, orders, and judgments were alike in the three cases.

For the reasons given for reversal in the case first cited, the judgment in this case must be reversed and the cause remanded for further proceedings. Eekert-Burton Const. Co. v. Board of School Trustees (Tex. Civ. App.) 51 S.W.(2d) 642.

Numerous other grounds for reversal are apparent in the record, but will probably not recur upon another trial, and therefore need not be discussed or specifically decided upon this appeal.

The judgment is reversed, and the cause remanded.


author: PER CURIAM.

text:
    FEDERAL CRUDE OIL COMPANY v. B. E. QUINN et al.
    No. 1878.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 27, 1932.
    E. E. Easterling and W. D. Gordon, both of Beaumont, and Nelson Phillips, of Dallas, for appellant.
    Beeman Strong and Orgain, Carroll & Bell, all of Beaumont, for appellee.
   PER CURIAM.

This case was submitted in this court under the agreement that the disposition of Federal Crude Oil Company v. Yount-Lee Oil Company (Tex. Civ. App.) 53 S.W.(2d) 1119, this day reversed and remanded by us +o the lower court, should control the disposition to be made of this case.

It follows that the judgment herein must be reversed, and the cause remanded for a new trial, and it is accordingly so ordered.

Reversed and remanded.


text:
    FEDERAL CRUDE OIL CO. v. YOUNT-LEE OIL CO. et al.
    No. 1809.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 27, 1932.
    Phillips, Townsend & Phillips, of Dallas, and E. E. Easterling, W. D. Gordon, and M. S. Duilie, all of Beaumont, for appellant.
    Beeman Strong and Orgain, Carroll & Bell, all of Beaumont, for appellee.
   PER CURIAM.

The issues of law-in this case were heretofore certified by us to the Supreme Court, and, upon the answers given to our questions, reported Federal Crude Oil Company v. Yount-Lee Oil Company (Tex. Sup.) 52 S.W. (2d) 56, error was committed by the trial court in the trial of this cause, necessitating its reversal, and it is accordingly so ordered.

Reversed and remanded.


author: ALDEN A. STOCKARD, Special Judge.

text:
    Gregory FREESMEIER, Appellant, v. Wilson P. HUNT, Respondent.
    No. 36120.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Sept. 9, 1975.
    James R. Anderson, Webster Groves, for appellant.

      Eugene P. Walsh, Walsh, Howe & Ebert, Clayton, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Both the magistrate court and the circuit court dismissed plaintiff’s petition for failure to commence his action within the five year statute of limitations and he has appealed. We affirm.

The case was submitted to the circuit court on a stipulation of facts which we summarize sufficiently to present the issue for determination.

On August 13,1970, plaintiff filed a petition in the magistrate court of St. Louis County alleging that he sustained personal injury and property damage as the result of an automobile collision occurring on August 14, 1965. On August 26, 1970, the clerk of the magistrate court caused a writ of summons to be delivered to the Sheriff of St. Louis County for service on the defendant. Service was to be by process. There was no voluntary appearance of defendant, nor was there any agreement as to the commencement of the suit.

Section 517.020, RSMo 1969, provides:

Suits may be instituted before a magistrate, either by the voluntary appearance and agreement of the parties or by process; and the process for the institution of a suit before a magistrate shall be either a summons or an attachment against the property of the defendant; if by agreement, the action is deemed commenced at the time of filing the case; if by process, upon delivery of the writ to the sheriff to be served; and he shall note thereon the time of receiving the same.

In this ease the writ of summons was not delivered to the sheriff to be served until August 26, 1970; five years and twelve days after the cause of action accrued.

Appellant argues that when he filed his petition within the five year period following the accrual of his cause of action, the clerk had a duty to issue the summons forthwith and deliver it to the sheriff for service; that he had no further control over the delivery of the summons; and that he complied with all applicable statutes as fully as was possible for him to do so. He further argues that § 516.120, RSMo 1969, “unqualifiedly entitled a plaintiff to commence civil action within five years of the date that the cause of action arose, and that a strict or literal construction or interpretation” of § 517.020, as above set forth, to require that the summons must be actually and physically delivered to the sheriff within the five year period will deny him “the protection of, and the rights set forth under, the five year statute.”

“The proper procedure necessary to commence an action is generally regulated by statute [or by rule when so authorized], and the practice varies in the different jurisdictions, and even in the same jurisdiction the steps necessary to constitute commencement of an action or suit may vary for different purposes in different courts, * * *.” 1 C.J.S. Actions § 129. What procedural steps are sufficient to constitute a commencement of an action in a circuit court and to toll a statute of limitations does not necessarily apply to a magistrate court. Therefore, the cases cited and relied on by appellant are not necessarily in point.

At the time the petition in this case was filed, what was then Rules 41 et seq., known as the Rules of Civil Procedure (now repealed and replaced effective September 1, 1972), governed the practice and procedure in “all suits and all proceedings of a civil nature, legal, equitable and special in the following courts: Supreme Court, Court of Appeals, Circuit Courts, and Courts of Common Pleas.” It was further provided that “Where specifically provided, the rules shall govern proceedings in Magistrate Courts.” Rule 53.01, entitled “How Civil Actions May be Instituted in Circuit Courts and Courts of Common Pleas,” provided, among other things, that “The filing of a petition and suing out of process therein shall be deemed the commencement of a civil action.” Not only was there no specific provision that Rule 53.01 was applicable to magistrate courts, the title of the rule specifically limited its application to circuit courts and courts of common pleas. Therefore, the time when a suit in a magistrate court was to be deemed commenced was governed by the provisions of § 517.020, RSMo 1969.

The effect of appellant’s argument is that by judicial construction we should alleviate what he contends to be a harsh result. However, it has been held that the legislature in the exercise of its power to enact statutes of limitations has the authority to fix the date when the statute commences to run, Laughlin v. Forgrave, 432 S.W.2d 308 (Mo. banc 1968), and as a corollary it also has the authority to declare what acts constitute the commencement of an action for the purpose of tolling a statute of limitations. Wisely or unwisely, the legislature provided that an action in a magistrate court was to be deemed commenced “upon [the] delivery of the writ [of summons] to the sheriff to be served.”

The factual situation before us is that the petition was timely filed, but the writ of summons was not delivered to the sheriff for service until twelve days after the five year period of limitations had expired, and the legislature declared, as a matter of public policy, that an action filed in a magistrate court is not to be “deemed commenced” for the purposes of tolling the statute of limitations until the writ of summons was delivered to the sheriff for service. Under these circumstances we are constrained to rule that plaintiff’s cause of action was barred by the five year statute of limitations.

The judgment is affirmed.

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


author: NORWIN D. HOUSER, Special Judge.

text:
    Roy J. BECKER and Margaret M. Becker, his wife, Respondents, v. Harold R. WORKMAN and Elizabeth J. Workman, his wife, Appellants.
    No. 36352.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Oct. 21, 1975.

      Gordon P. Webb, Clayton, for appellants.
    Richeson, Roberts, Wegmann, Gasaway, Stewart & Schneider, Samuel Richeson, Nicholas G. Gasaway, Hillsboro, for respondents.
   NORWIN D. HOUSER, Special Judge.

Roy J. and Margaret M. Becker filed suit against Harold R. and Elizabeth J. Workman to quiet title to certain land situate in Jefferson County. Defendants filed an answer and counterclaim praying that title be quieted in them. Plaintiffs filed a reply setting up title by adverse possession (a theory not pursued at trial). The parties own adjoining tracts of land, plaintiffs’ property lying west of defendants’ tract. This is a dispute as to the location of the dividing line. It involves title to a 2.45 acre tract. The trial court, sitting without a jury, found the issues for plaintiffs and against defendants, both on petition and counterclaim, and quieted title to the 2.45 acre tract in plaintiffs. Defendants have appealed.

The common source of title is Robert H. Cobb.

In 1967 Cobb deeded to plaintiffs Becker the north half of a quarter section, less and excepting two tracts, one of which was described as a 23 acre tract, more or less, conveyed by Cobb to Oliver in 1961. The controversy grows out of the description of the western boundary line of that tract in the Cobb-Oliver deed, as follows: “ * * * bounded on the West side by a new three strand heavy barbed wire fence, with cedar posts which is the dividing line between property under consideration for sale and property belonging to Robert H. Cobb. Tract contains 23 acres, more or less.” In 1971 Oliver and wife conveyed this land to defendants Workman by deed describing the western boundary in the same language quoted above, again using the quantity description, “Tract contains 23 acres, more or less.”

In 1957 or 1958 Cobb, at that time owner of the entire north half of the quarter section, caused his hired hands to build a three strand heavy barbed wire fence from point A on the following diagram, located on the north line of his property, through points B and D to point E, which was located on the south line of his property. At approximately the same time Cobb had his employees build a three strand heavy barbed wire fence along line BCD, completely enclosing the shaded area, which represents the 2.45 acre tract in controversy.

The descriptive language presents no ambiguity on the face of the deed but when one attempts to apply or fit the language to the subject matter on the ground for the purpose of identifying the western boundary an ambiguity or duplexity in meaning at once raises a doubt whether the western boundary described in the Cobb-Oliver and Oliver-Workman deeds is meant to be the line of barbed wire fence running from letter A through B, D and E, or is the line ABODE. If the former, the 2.45 acre tract belongs to respondents Becker. If the latter, the 2.45 acre tract belongs to appellants Workman. “A latent ambiguity in the description of land in a deed or mortgage is an uncertainty not appearing on the face of the instrument, but which is shown to exist for the first time by matter outside the writing, when an attempt is made to apply the language to the ground. Such an ambiguity, it is practically agreed by all the cases, may be explained and removed by parol evidence; having been revealed by matter outside the instrument, it may be removed in the same manner.” 68 A.L.R. Anno. p. 5, quoted with approval in Meinhardt v. White, 341 Mo. 446, 107 S.W.2d 1061, 1064[4] (1937). And see Wailters v. Tucker, 281 S.W.2d 843, 847[1] (Mo.1955). The question, then, is one of the intention of the parties to the 1961 Cobb-01iver deed. (The intention of the parties to the Oliver-Workman deed in 1971 with respect to the courses and directions of the western boundary is immaterial, for obviously, regardless of intention, the Olivers could not convey to the Workmans more land than they acquired from Cobb.)

Considering the parol and extrinsic evidence tending to resolve the latent ambiguity and leading to discovery of the true intention of the parties to the Cobb-Oliver deed we conclude that they meant the western boundary to be the line A B D E and did not intend to include the 2.45 acre tract in the conveyance. We have the benefit of two surveys, made after the filing of this action. The Hurtgen Survey, on which we rely, shows that the tract originally conveyed to Oliver and later by the Olivers to the Workmans, excluding the 2.45 acre tract, contains 19.68 acres. We do not have the benefit of the testimony of Mr. Cobb, grantor in the 1961 deed, but the grantee, Mr. Oliver, testified and we attribute great weight to his testimony as bearing on the intention of the parties. At no time did Oliver ever claim that he owned the 2.45 acre tract. He did not consider that he had purchased that tract. He conceded that Cobb owned the 2.45 acre tract during the eight or ten years Oliver lived on the 19.68 acres. Referring to the lumber gate (located at the black mark just above letter D on diagram) Oliver testified that Cobb owned the property on the “other side” of that gate, obviously referring to property lying west of the gate. Both before and after Cobb executed the deed to Oliver in 1961 grantor Cobb claimed, farmed and used the 2.45 acre tract, and workmen hired by Cobb cut hay off it. William and Marvin Henry, brothers hired by Cobb during the period 1957-1963, verified Oliver’s testimony that Oliver made no claim to the 2.45 acre tract. We accept the testimony that Cobb had control of the 2.45 acre tract and used it during those years; that the fence on the line BCD was put around the 2.45 acre tract to keep Cobb’s cattle out of Cobb’s alfalfa field; and that Oliver neither used nor made claim to the land lying west of the fence line B D. The gate referred to had a chain and lock. When Cobb made the deed to the Beckers in 1967 Cobb delivered a number of keys to Mr. Becker. Presumably one of the keys fitted the gate lock. Roy J. Becker claimed the 2.45 acre tract as his property and erected a “keep out” — “No Trespassing” sign near point C on the diagram, facing east.

On the law and evidence we reach the same result arrived at by the trial court, finding no merit in the reasons assigned by appellants why the circuit court erred in its findings.

Appellants rely heavily upon the fact that the deed recites that the land conveyed by Cobb to Oliver contains “23 acres, more or less.” They argue that the 19.68 acres computed by the surveyor plus the 2.45 acres in question yields the figure 22.13 acres (only .87 acre less than the recital), and that if the Workmans do not get the 2.45 acres they will have received only 19.68 acres, which is 3.32 acres (14.44%) less than the amount stated in the deeds, and the Beckers will have acquired an additional 3.32 acres for which they did not bargain. Citing Kite v. Pittman, 278 S.W. 830 (Mo.App.1926), and McGhee v. Bell, 170 Mo. 121, 70 S.W. 493 (1902), they say the words “more or less” mean only a small excess or deficiency in proportion to the total amount named and that “more or less” would not cover a 14% discrepancy. We do not agree that the recital of the quantity of acres stated in the deed shows Cobb’s intent to convey the 2.45 acre tract. The recital of the quantity of acres as 23 was evidently a guess. There had been no survey to establish the accuracy of that figure. Appellants’ witness Dudley, a surveyor, conceded that “when people are foolish enough to write a deed by a barbed wire fence description” they are guessing at the acreage; that the recital of 23 acres was “just an estimate,” since there was no survey; that it would not be unusual to guess 23 acres in the case of a 19.68 acre tract. Furthermore, metes and bounds in a description control a call for acreage. Cantrell v. McDonald, 412 S.W.2d 403, 408[4] (Mo.1967).

Appellants argue that since there was only one gate into and out of the 2.45 acre tract, and since that gate was on the east side adjoining the 19.68 acre tract “respondents would have to trespass on Appellants’ property to enter the field by the gate.” From this appellants conclude that “[sjurely if Cobb had intended to retain ownership of the field he would have reserved an easement to the field” when he conveyed to Oliver (as he did when he conveyed the tract east of the 19.68 acres to Spradling in 1960). This slight circumstance supports appellants’ position but is of little importance in the whole picture, considering the other impelling evidence of intent not to include the 2.45 acre tract in the grant.

Appellants urge that the Beckers did not exercise rights of possession in or demonstrate acts of ownership over the 2.45 tract; did not open the locked gate; did not determine whether the keys fit the lock; made no use of the field, and made no objection when the Workmans used the field (by placing ponies in the field, without objection by the Beckers). Appellants concede that the Beckers objected to appellants’ children and dogs coming onto their property west of the field, and that the Beckers erected the no-trespassing sign, but argue that if the Beckers believed they owned the 2.45 acre tract they would have erected the sign on the gate at the eastern edge rather than on the fence at the western tip of the 2.45 acres. We are not impressed with these contentions. Mr. Becker positively claimed purchase of 253 acres of land, a part of which was the land west of the line A B D E, and testified at length that appellants’ vicious dogs prevented his use of that portion of his land. He said you are “not about to” put a no-trespassing sign at the gate on the east side of the 2.45 acre tract when there are ten or fifteen vicious, excited dogs surrounding you and your car. More to the point, while the matters urged by appellants would have been pertinent if the issue had been title vel non by adverse possession, neither side of this controversy claimed title on that theory. The issue tried was which of the two locations of the western boundary line was truly intended by the parties to the 1961 deed—the fence line A B D E or the fence line ABODE? While the acts and understandings of the original grantor Cobb and original grantee Oliver properly bear on the question what land was intended to be included in the grant, the acts, conduct and understandings of their alienees have no impelling effect upon that determination.

Finding no error on this review, and being of opinion that the case was correctly ruled by the circuit judge, the judgment is affirmed.

SMITH, C. J., and ALDEN A. STOCK-ARD, Special Judge, concur.


author: WEIER, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Robert McCOY, Defendant-Appellant.
    No. 36623.
    Missouri Court of Appeals, St. Louis District, Division One.
    Oct. 21, 1975.
    Motion for Rehearing or Transfer Denied Nov. 19, 1975.

      Charles D. Kitchin, Public Defender, Henry J. Rieke, Prank P. Pabbri, III, James C. Jones, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Philip M. Koppe, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Mark A. Brown, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   WEIER, Presiding Judge.

Defendant Robert McCoy appeals from his conviction for assault with intent to ravish with malice aforethought, § 559.180, RSMo.1969, for which he was sentenced to twenty-five years in the department of corrections under the Second Offender Act, § 556.280, RSMo.1969. He appeals his conviction claiming only that the trial court committed reversible error in refusing to submit to the jury an instruction on assault with intent to ravish without malice, a lesser included offense. § 559.190, RSMo.1969. We affirm the conviction for the reasons that follow.

Shortly before midnight on May 17, 1974, defendant accosted a sixteen year old girl while she was walking home from a friend’s house. Defendant drew a knife from the umbrella he carried and ordered the girl into a nearby vacant lot. She refused and ran into the street where she unsuccessfully attempted to stop passing cars. Defendant pursued and overtook her, put the knife against her throat and forced her to accompany him to another vacant lot. While crossing the street, defendant warned her to “shut up” or he would hurt her. Upon reaching the lot, the girl began to scream. Defendant struck her across the face several times with his closed fist and she fell to the ground. Defendant then got on top of her and started to undo her clothing. The girl continued screaming and struggling intermittently for some time. Defendant alternately bit her, struck her with the knife handle, cut her finger, choked her, and tried to pull her slacks off.

At approximately 1:10 a. m., May 18, 1975, Officers Dickens and Marre of the City of St. Louis Police Department heard a broadcast on their car radio reporting a rape in progress. They drove to the area, proceeded to the vacant lot, observed a man on top of another person hitting the one underneath. The two officers gave chase. They observed a metal object in the subject’s hand which reflected the street lights. Defendant tripped and fell, dropping the object. He was apprehended and the object, a knife, was retrieved nearby. Officer Marre did not lose sight of defendant from the time he observed him on top of the victim in the vacant lot until he was taken into custody. The officer observed no one else but defendant and the victim. The girl was bleeding, needed assistance to walk, and lost consciousness when she reached the sidewalk. She was hospitalized for five days.

Defendant presented no evidence. During the cross-examination of an arresting officer, however, it was revealed that, when taken into custody, defendant stated to the officer that one Floyd Hanes had dragged the victim into the lot and ravished her while defendant merely watched.

The trial court instructed the jury on assault with intent to ravish with malice. Defendant’s requested instructions on common assault and assault with intent to ravish without malice were rejected. Defendant assigns as error only the rejection of the latter instruction which read in part as follows:

“If you find and believe from the evidence beyond a reasonable doubt:
“First, that on or about the 18th day of May, 1974, in the City of St. Louis, State of Missouri, the defendant assaulted [victim’s name], and
“Second, that he did so with intent to do great bodily harm to [victim’s name] then you will find the defendant guilty of as sault with intent to do great bodily harm without malice aforethought.” (Emphasis added.)

The instruction makes no reference to an intent to ravish. The state contends that the submitted instruction was therefore erroneous and was properly refused. The state is partially correct. The trial court is not required to submit an incorrect instruction to the jury. Nevertheless, the trial court is required by Rule 26.02(6) to instruct on all the law of the case necessary for the jury’s guidance in rendering their verdict whether requested or not. State v. Watson, 364 S.W.2d 519, 522[3-8] (Mo.1963); State v. Walker, 505 S.W.2d 119, 121[5-8] (Mo.App.1973).

Whether an instruction upon a lesser or included offense is required, however, depends upon a consideration of the evidence presented. “An instruction on the lesser or included offense is required only if there is evidence to support such a submission. Where the evidence so clearly shows the commission of the more serious crime as charged that no other interpretation of the defendant’s conduct is reasonably possible, * * * ” a defendant is not entitled to an instruction on the lesser or included offense. State v. Watson, supra, 364 S.W.2d at 522[3-8]; State v. Webb, 518 S.W.2d 317, 321[4] (Mo.App.1975).

The distinction between an assault with malice, § 559.180, and an assault without malice, § 559.190, “lies in a general weighing together of all of the facts and circumstances including the comparative strength and positions of the parties, the presence or absence of ‘provocation’ or justifying, mitigating, excusing or aggravating circumstances, the weapon or means or force employed, the manner in which the weapon or force was employed, the injury sustained, etc.” Richardson, The Missouri Bar Committee Comments on Missouri Approved Criminal Instructions, Assault, p. 22 (1974). We decline to accept defendant’s suggestion that the victim’s screams can be considered provocation or supply justification or excuse for striking her. Moreover, “[t]he law presumes malice as a concomitant of an assault with a deadly weapon in the absence, * * * of countervailing testimony or circumstances.” State v. Ayers, 305 S.W.2d 484, 486[2] (Mo.1957). The evidence leaves no doubt that appellant used a knife in attempting to effect his purpose. Neither did appellant present any evidence to counter the presumption of malice raised by his use of the knife. His only theory, brought out during cross-examination of the arresting officer, appears to be his self-serving statement that it was someone else and not he who assaulted the victim.

The state’s evidence proved that if any assault was committed, it was committed with a knife and for the purpose of raping the victim. Defendant made no claim, nor did he submit any evidence to prove that he engaged in an assault for any other purpose or without a deadly weapon. On this record, he was either guilty of assault with intent to ravish with malice or he was not guilty of any offense. See State v. Washington, 357 S.W.2d 92, 94[6] (Mo.1962); State v. Norris, 365 S.W.2d 501, 504[4] (Mo.1963); State v. Ayers, supra, 305 S.W.2d at 486[4]. Since no evidence appears that would justify an instruction on assault with intent to ravish without malice, the court did not err by failing to instruct thereon. State v. Webb, supra, 518 S.W.2d at 321[8].

Appellant’s conviction is affirmed.

DOWD and RENDLEN, JJ., concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    The GATES RUBBER COMPANY, a corporation, Appellant, v. Price B. WILLIFORD et al., Respondents.
    No. KCD 26970.
    Missouri Court of Appeals, Kansas City District.
    Nov. 3, 1975.
    Motion for Rehearing and/or Transfer Denied Nov. 19, 1975.

      Thomas A. Schwindt, Berman, DeLeve, Ruchan & Chapman, Kansas City, for appellant.
    Michael J. Albano, Graham, Paden, Welch, Martin & Tittle, Independence, for respondents.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

On November 7, 1969, The Gates Rubber Company, a corporation, obtained a judgment in the Jackson County Circuit Court against Samuel H. Deese for $3,987.31. Pursuant to the application of Gates, the circuit court issued an order charging the interest of Deese, if any, in a partnership consisting of Deese, Price Williford, Duren Sleyster and Mark Deese, with the payment of the judgment. A special execution issued, pursuant to which Samuel Deese’s interest in the partnership was sold at public sale to Gates for $500.00. Gates thereafter brought this action against Williford, Williford’s wife, Sleyster, Sleyster’s wife and Mark Deese. By Count I of the action, Gates sought a dissolution of the partnership, an accounting as to the partnership profits, losses and affairs and for a proper distribution of the net assets of the partnership. Count II sought to quiet title in the partnership to real estate, alleged to have been acquired with the funds of the partnership, title to which was held by Williford and Sleyster. By their answer, defendants alleged that Williford, prior to the sheriff’s sale, had acquired the interest of Deese in the partnership and that “there is no interest with which the petition herein is applicable.” At a trial of the cause, the court sustained defendants’ motion to dismiss plaintiff’s cause of action at the close of plaintiff’s case. This appeal followed.

In February, 1963, Samuel H. Deese, Mark E. Deese, Price B. Williford and Du-ren N. Sleyster entered into an oral partnership to engage in the business of manufacturing and selling furniture. The partnership name was “Diversified Activities.” The business operated under the name “Bishop Furniture Company,” at a building at 1341 Knox, North Kansas City, Missouri. The partnership arrangement was for a 25% interest in each partner.

The real estate described in Count II of plaintiff’s petition was the property at 1341 Knox. It was conveyed by the Small Business Administration to Williford and Sley-ster on or about December 27, 1963. Willi-ford advanced a portion of the money for the down payment of the purchase price, but was reimbursed by the partnership. The partnership provided the balance of the down payment. The balance of the purchase price was borrowed from the Ray-town Bank and Williford and Sleyster and their wives executed a deed of trust on the property to secure the indebtedness. Payments on the note through March 11, 1969 were made by the partnership. The land and building were shown as an asset on the books of the partnership until at least February 28, 1969. In answer to interrogatories, in connection with this case, Williford and Sleyster asserted ownership of a 25% interest in the property.

The partnership operated at a profit in 1967 of $36,800.01, shared equally among the four partners according to the partnership’s federal income tax return. The next two years were less successful, with a los of $78,532.06 for the year ending December 31, 1968, and a loss of $79,588.72 for the following year, again equally apportioned among the four partners. Sometime during 1969, the inventory of the Bishop Furniture Company was sold. The record is silent as to subsequent activity of the partnership.

On November 7, 1969, appellant, The Gates Rubber Company, obtained a judgment in the Jackson County Circuit Court against Samuel H. Deese for $3,987.31.

On January 16, 1970, appellant, pursuant to § 358.280, RSMo 1969, filed an application for an order charging the interest of Samuel H. Deese in the partnership with the payment of the judgment debt. An order was issued directed to Deese, Willi-ford, Sleyster and Mark Deese, calling upon them to answer Gate’s application and show cause why an order should not be issued charging the interest of Deese.

A hearing was held on February 6, 1970, at which the four partners were represented by attorneys. The court found the existence of the unpaid judgment debt and further found “that the said Samuel H. Deese is a partner in the firm of Diversified Activities, d/b/a Bishop Furniture Company, a partnership consisting of Samuel H. Deese, Price Williford, Duren Sleyster, and Mark Deese, with place of business at 1345 Knox in North Kansas City, Missouri.”

The order continued:

“IT IS THEREFORE ORDERED that the interest of said Samuel H. Deese, if any, in the said partnership of Samuel H. Deese, Price Williford, Duren Sleyster and Mark Deese, known as Diversified Activities, and doing business under the name of Bishop Furniture Company, is hereby charged with the payment of said sum of $3,987.31, the unsatisfied amount of said judgment debt, together with the interest thereon and with the costs of collection of said unsatisfied judgment debt and interest thereon; * *.”

A special execution was issued, ordering the sale of Deese’s interest in the partnership to satisfy the judgment. On April 20, 1971, the sheriff, at public vendue, sold the interest of Deese to appellant for $500.00. A Sheriff’s Bill of Sale issued and the court confirmed the sale on May 19, 1971.

The petition in this ease was filed May 26, 1971. It alleged the existence of the partnership and generally the matters above recited. It further alleged that since on or before April 9, 1970, the partnership had not engaged in the business of manufacturing and selling furniture, but that no steps had been taken to liquidate the partnership. It alleged the ownership by the partnership of the building at 1341 Knox and that Willi-ford and Sleyster were receiving rent and profits therefrom without accounting therefor to plaintiff. Count II related to the ownership of the real property. By their answer, defendants alleged that plaintiff had no interest in the partnership because Williford had purchased the interest of Samuel Deese on February 28, 1969.

At the trial of the case, plaintiff introduced documentary evidence which included income tax returns of the partnership, the Willifords and the Sleysters, the record of the charging procedure in the circuit court and profit and loss records of the partnership for the years 1968 and 1969. The accountant who prepared the profit and loss statement also testified on behalf of plaintiff. Plaintiff’s attempt to show by that witness statements by Williford to him in February, 1969, as to the partnership’s members, was precluded by an objection of defendants, sustained by the trial court, based upon the failure of plaintiff, in response to interrogatories, to indicate that the witness would be relied upon as a source of evidence of matters alleged in plaintiff’s petition.

At the conclusion of plaintiff’s case, defendants’ motion to dismiss was sustained, the trial court in its order reciting that plaintiff had failed to introduce evidence that its predecessor, Samuel Deese, had an interest in the partnership and that plaintiff had failed to prove that it had an interest in the partnership. After its motion for new trial had been overruled, this appeal followed.

Appellant here contends that the evidence below was sufficient to show that Deese had an interest in the partnership which it acquired by virtue of the sheriff’s sale, following the charging order. Appellant points to all of the evidence which it adduced in support of its position, but its primary reliance was upon the finding of the court in the charging order of the existence of the partnership and of Deese’s interest in the partnership. Respondents contend that the charging order is directed at Deese’s interest, “if any,” in the partnership negates any finding in the order of the existence of such a partnership and Deese’s interest in it.

The application for the charging order alleged the existence of the partnership and Deese’s interest therein. The order directed to the respondents directed them to appear and show cause why the interest of Deese in the partnership should not be charged with the payment of appellant’s judgment. By their attorneys, respondents did appear at the show cause hearing. The respondents filed no formal response to the application for the charging order but they must be held responsible for knowing the possible adverse effect upon their partnership interest which a charging order would produce. Insofar as they were concerned, the proceeding was an adversary one and they took no steps to appeal the order, adverse to their interests. See Ribero v. Callaway, 87 Cal.App. 135, 196 P.2d 109, 111-112[2, 3] (1948). Respondents are now estopped to question the affirmative finding of the court that said Samuel H. Deese is a partner in the firm of Diversified Activities. Tupper v. Kroc, 88 Nev. 146, 494 P.2d 1275, 1278[2, 3] (1972).

The fact that the order charged Deese’s interest, “if any,” does not negate the affirmative finding of the court of the existence of the partnership and of Deese’s interest. The “if any” condition was nothing more than a recognition of the nature of Deese’s interest. Under § 358.260, “A partner’s interest in the partnership is his share of the profits and surplus, and the same is personal property.” Thus Deese would have had an interest subject to being charged only if the partnership had profits and surplus, unknown factors at that time and a matter certainly of possible doubt in view of the then dormant status of the firm’s business activity.

Respondents’ attempt to justify the trial court’s ruling on the grounds that appellant made an election of remedies which destroyed any right it obtained under the charging order is without merit. The sale of the partner’s interest subject to the charging order is authorized by § 385.280. The purchaser of the interest at such sale has the right to apply thereafter for the dissolution of a partnership at will, such as this was. § 358.320, subd. 2(2). Thus, the action here taken was entirely consistent with the charging order and no question of election of remedies is involved.

This being an equity case, this court on appeal reviews the evidence and arrives at its own conclusions of fact and law. There is no question of resolving conflicting testimony in this case and therefore no deference is to be accorded the trial court’s findings. Furthermore, defendants having rested their case on a motion to dismiss at the close of plaintiff’s case, they are considered to have submitted the case for final determination on plaintiff’s evidence. Hoynes v. Hoynes, 218 S.W.2d 823, 828[3] (Mo.App.1949); Lee v. Smith, 484 S.W.2d 38, 42[3] (Mo.App.1972).

In this situation, as above indicated, plaintiff’s evidence did show that it was entitled to the relief sought in Count I of its petition. As for Count II, plaintiffs’ evidence showed that, although the property there described was acquired in the name of Sleyster and Williford, the evidence further showed that they were reimbursed by the partnership for funds they advanced for the purchase; that payments on the loan made to provide a portion of the purchase price were made from partnership funds through early 1969; that the partnership paid the taxes on the property through 1967 and established a tax reserve with a bank for payment of the 1968 taxes; that the partnership paid the insurance premiums on the property through 1968; that the property was carried as an asset on the books of the partnership and was depreciated on the partnership income tax returns. Finally, in response to interrogatories, respondents each claimed a 25% interest in the property and named the Deeses as owners of the other interests in the property.

Plaintiff’s evidence, therefore, did establish that the real estate in question was partnership property. The trial court should have so decreed in response to Count II of plaintiff’s petition.

Judgment reversed and cause remanded with direction to enter new decree, granting plaintiff relief sought in both counts of its petition.

Respondents’ motion to dismiss the appeal for failure of appellant’s brief to comply with the rules, taken with the case, is overruled.

Reversed and remanded.

All concur.


author: TURNAGE, Judge.

text:
    CHARLES PALERMO COMPANY, INC., and Louis Pascuzzi, d/b/a Kansas City Fruit Company, Appellants, v. Will WYANT, Jr., d/b/a Will Wyant & Son, and Will Wyant, Sr., Respondents.
    No. KCD 27047.
    Missouri Court of Appeals, Kansas City District.
    Nov. 3, 1975.
    Motion for Rehearing and/or Transfer Denied Nov. 19, 1975.

      Bernard L. Balkin, Keith E. Witten, Achtenberg, Sandler & Balkin, Kansas City, for appellants.
    Michael H. Maher, Swanson, Midgley, Eager, Gangwere & Thurlo, Kansas City, for respondents.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and TURNAGE, J.
   TURNAGE, Judge.

This is a consolidated appeal by Charles Palermo Company, Inc., (Palermo) and Louis Pascuzzi from an adverse judgment following a trial without a jury.

Plaintiffs filed individual suits against Will Wyant, Sr. and Will Wyant, Jr. These suits were consolidated for trial in the trial court. The petitions in each suit were identical and alleged that Wyant, Jr. was engaged in the produce business in Kansas City and plaintiffs sold merchandise and produce to Wyant, Jr. from March 31,1971, to about September 1, 1971. The petition further alleged in the case of Pascuzzi, a balance due of $8,761.60 for such purchases, and in the ease of Palermo, a balance due of $3,921.75. The petitions alleged Wyant, Sr. unconditionally guaranteed the payment by Wyant, Jr. of the accounts alleged.

The evidence showed that Wyant, Sr. had been in the produce business in Kansas City for over fifty years at the time he retired in 1963. At that time the business was taken over by his son, Wyant, Jr., who was the sole proprietor. In early 1971, Wyant, Sr. learned of financial difficulty being experienced by his son in the business. Wyant, Sr. still had a deep attachment for the business and wanted to see his son succeed if possible.

Wyant, Sr. took it upon himself to make and deliver to both plaintiffs a guaranty. The guaranty delivered to each of the plaintiffs was in almost identical language. The one delivered to Pascuzzi read as follows:

“I will personally guarantee and pay off any increase of Indebtedness above balance owing you on March 1-71 by Will Wyant Jr if you agree to give Him chance to operate till 9-1-71 He to continue to trade with you I believe He can pay off the trade at least 500.00 per month total Indebtedness owing with your cooperation”

The one delivered to Palermo read as follows:

“I will personally guarantee guarantee [sic] to pay any increase of indebtedness owing you March 1-71 by my son Will Wyant Jr if you agree to give him chance to continue till 9-1-71 He to continue to trade with you I believe He can pay off to the trade at least $500.00 per month of indebtedness or more with your cooperation”

During the trial, evidence was offered concerning conversations which Wyant, Sr. had at the time the guaranty was delivered to Pascuzzi. Plaintiffs maintained from this evidence and from the language of the guaranty that there was no ambiguity and the guaranty clearly covered all purchases which Wyant, Jr. made from each plaintiff after March 1. Wyant, Sr. took the position the guaranty was not completely unambiguous but that it covered only any increase in the balance due which Wyant, Jr. owed to each plaintiff on September 1, 1971, over and above the balance due on March 1, 1971.

The evidence further showed that Wyant, Jr. had made purchases from Pascuzzi during the period of March 1 to September 1 of $15,728.80, and purchases from Palermo during such period totalling $4,448.80. The parties stipulated that on March 1, 1971, Wyant, Jr. owed Pascuzzi $8,429.75 and on September 1, 1971, his balance was $6,747.05. The balance due Palermo on March 1, 1971, was $7,287.35, and the balance on September 1, 1971, was $7,105.10. The evidence further showed payments by Wyant, Jr. during this period which accounts for the smaller balance on both accounts in September than in March.

The trial court made findings of fact and conclusions of law in which it was concluded Wyant, Sr.’s guaranty was not for all purchases made by Wyant, Jr. during the period in question, but extended only to any amount Wyant, Jr.’s indebtedness to either plaintiff on September 1, 1971, was over and above his indebtedness to either plaintiff on March 1, 1971. The court further found pursuant to the parties’ stipulation that Wyant, Jr. actually owed less to each plaintiff on September 1, 1971, than he had on March 1 of that year.

Plaintiffs have appealed the judgment against them and in favor of both Wyant, Jr. and Wyant, Sr., but on this appeal brief only the alleged error in finding in favor of Wyant, Sr. The appeal as against Wyant, Jr. is, therefore, deemed to be abandoned. Komanetsky v. Missouri State Medical Association, 516 S.W.2d 545 (Mo.App.1974).

Plaintiffs urge on appeal that Wyant, Sr.’s guaranty was ambiguous and urge this court to look at the guaranty and by applying a number of subsidiary rules of construction find the guaranty would include all purchases Wyant, Jr. made between March and September.

Plaintiffs now contend the words “increase of indebtedness” in the guaranty means all purchases, because, as plaintiffs point out, each time Wyant, Jr. made a purchase during the period in question, he thereby increased his indebtedness. This regardless of any payment which might thereafter be made.

The trial court did not make a specific finding as to ambiguity, but its finding is consistent only with the other meaning which plaintiffs concede can be ascribed to the words in question, i. e., the difference in balance between March 1 and September 1.

This court has concluded the language used by Wyant, Sr. was plain and unambiguous. The trial court correctly found that the language in question only obligated Wyant, Sr. to pay any increase in the amount which Wyant, Jr. owed as between September 1 and March 1. It is stated in 17A C.J.S. Contracts ¶ 294, pp. 33, 34, “neither the parties nor a court can create an ambiguity where none exists.” Therefore, even though both parties on this appeal state the guaranty is ambiguous, neither they nor this court can create an ambiguity where none exists. See also John Deere Company v. Hensley, 527 S.W.2d 363 (Mo. banc 1975).

“ ‘If the terms of a contract are clear and unambiguous the contract will be enforced or given effect in accordance with its terms, and without resort to construction to determine the intention of the parties. . When the language of a contract is plain, there can be no construction because there is nothing to construe. Mickleberry’s [sic] Food Products Co. v. Haeussermann, Mo. Sup., 247 S.W.2d 731, loc. cit. 738.’ ” Willman v. Beheler, 499 S.W.2d 770, 774[1-5] (Mo.1973).

The language used by Wyant, Sr. is very clear and concise, even though it may be thought to be inartistic. The guaranty was to pay “any increase of indebtedness above balance owing you on March 1-71.” The guaranty continued that it was to be good if the plaintiffs would agree to give Wyant, Jr. a chance to operate until September 1, and further continued that Wyant, Jr. would continue to trade with the plaintiffs during the period specified. There can be no doubt this language revealed the intent on the part of Wyant, Sr. that Wyant, Jr. would continue to do business with the plaintiffs. There is also no doubt that Wyant, Jr. was indebted to the plaintiffs as of March 1. It is manifest the whole purpose in Wyant, Sr.’s giving the guaranty was to give Wyant, Jr. six months in which to operate with the plaintiffs being sure they would not be any worse off at the end of this period of time by having continued to do business with Wyant, Jr. It is obvious Wyant, Sr. was fearful the plaintiffs would refuse to sell to Wyant, Jr. after March 1, with the result Wyant, Jr. would probably be forced out of business. By guarantying the plaintiffs would not be out any more by having continued to do business with Wyant, Jr. for an additional six months, Wyant, Sr. was giving his son that period in which the son could possibly reverse his financial condition and would then have been able to continue in business. Of course, if Wyant, Jr. did not make any payments to the plaintiffs after March 1 for purchases made, then there would be an increase in the indebtedness for the amount of such purchases. However, by using the phrase “increase of indebtedness” it is clear Wyant, Sr. was not guarantying to pay the full amount of purchases made during this period, but agreed only to pay that amount by which the indebtedness on September 1 exceeded the indebtedness on March 1.

Wyant, Sr. had been in the produce business long enough and demonstrated a sufficient knowledge of the English language that had he intended to pay for all purchases made by Wyant, Jr. during this period, he would have used the term “purchase” or “sales” or would have otherwise clearly expressed the intention to pay for everything Wyant, Jr. bought from the plaintiffs during that time.

Since the language of guaranty is not ambiguous, the guarantor’s obligation or liability is not to be extended beyond the strict letter of his obligation. Industrial Bank & Trust Company v. Hesselberg, 195 S.W.2d 470 (Mo.1946). The strict letter of Wyant, Sr.’s obligation was to pay any increase in Wyant, Jr.’s indebtedness as it stood on September 1, 1971, over what it was on March 1, 1971. Since Wyant, Jr. owed both plaintiffs less on September 1 than he did on March 1, there is no liability under this guaranty on Wyant, Sr.

The judgment is affirmed.

All concur.


author: SHANGLER, Judge.

text:
    Timothy J. FORBES, a minor by his Father and Next Friend, Edward J. Forbes, Appellant, v. Mrs. Marie GATES, Respondent.
    No. KCD 27162.
    Missouri Court of Appeals, Kansas City District.
    Nov. 3, 1975.
    Motion for Rehearing and/or Transfer Denied Nov. 19, 1975.

      John G. Crighton, Kansas City, for appellant.
    F. Russell Millin, Millin, Crabtree & Hou-dek, Kansas City, for respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   SHANGLER, Judge.

This action for damages claims injury to a minor from a rear end collision. The defendant conceded liability but not damage. The jury returned a verdict for the defendant and the plaintiff appeals from the adverse judgment entered.

After plaintiff filed his brief on appeal, the defendant moved dismissal for deficiencies in the jurisdictional statement [Rule 81.08(b)], statement of facts [Rule 84.04(c)], a statement of points and authorities [Rule 84.04(d)] and the presentation of the argument [Rule 84.04(e)], The appellant was ordered to file an amended brief conformable to the requirements of appellate procedure or suffer dismissal. In due course, the appellant filed his amended brief, which respondent once again contends lacks compliance and once again seeks our order of dismissal. We took the renewed motion with the case and now, after argument and submission, we sustain the respondent and dismiss the appeal.

To be sure, the appellant now gives an acceptable jurisdictional statement, and is no longer in violation of Rule 81.08(b), but in every other respect the amended brief is but a rescript of the original which we found insufficient for purposes of decision.

It would not be instructive to catalog the numerous lapses in briefing which prompt our dismissal. It is sufficient, as a reference, to say that the single issue before the jury was whether the plaintiff was injured as the result of the admitted negligence of the defendant. The fair and concise statement of facts prescribed by Rule 84.04(c) is subverted into a distorted and partisan view of the evidence. Thus, the testimony of Dr. Workman who treated the plaintiff is represented as having found a subluxation of the cervical spine from the accident, whereas he actually described the condition as “a questionable abnormality”, possibly predating the accident, and which was no longer evident by the time of the second examination, seventeen days later. Also, the automobile which the plaintiff occupied is described as having been rendered a “total loss” by the collision — an hyperbole nowhere supported by the evidence which shows, only, damage to the rear trunk of the vehicle. The statement of facts, furthermore, is replete with references to the deposition testimony of the defendant which was neither received as admissions nor otherwise made part of the trial record.

The points relied on fail to comply with the rudimentary requirements of Rule 84.-04(d) for a brief and concise statement of what actions and rulings of the trial court are sought to be reviewed and wherein and why they are claimed to be erroneous.

We cannot make out the legal issues presented by the amended brief, and we do not choose to accept the challenge of surmise.

Accordingly, the appeal is dismissed.

All concur.