author: REINHARD, Presiding Judge.

text:
    STATE ex rel., Clifford WILSON, Relator, v. Hon. Michael J. HART, Judge, Judge of the Circuit Court of the City of St. Louis, Missouri, Division No. 2, Respondent.
    No. 41376.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 15, 1979.
    Motion for Rehearing and/or Transfer Denied June 15, 1979.

      James E. Crowe, St. Louis, for relator.
    Timothy V. Barnhart, St. Louis, for respondent.
   REINHARD, Presiding Judge.

This is a proceeding on a writ of prohibition. On February 6, 1979, a primary election was held relative to the Democratic nomination for alderman in Ward 4 of the City of St. Louis. Relator was declared the winner of that primary. On February 21, 1979, a petition to contest that election was filed in the court of respondent, the Honorable Michael Hart, Judge of the Circuit Court of the City of St. Louis. A summons was issued on February 26. Relator received service of process on February 27. On March 1, relator, named as contestee in the petition, filed a motion to dismiss the petition to contest in the court of Judge Hart, alleging that service of process had not been effected in the manner required by law. Specifically, relator asserted that service of process did not comply with the requirements of § 115.533 RSMo. (Supp. 1977). Judge Hart overruled the motion to dismiss and indicated his intention to proceed with the case.

On March 2, relator filed with this court a Petition for a Writ of Prohibition, setting forth the above facts, alleging that the circuit court lacked jurisdiction to proceed with the case, and requesting this court to order respondent to dismiss the action. Relator filed suggestions in support of his petition, and respondent countered with suggestions in opposition to the writ. Following arguments on March 2, 1979, for the reasons enumerated below, this court issued a permanent writ of prohibition commanding the circuit court to dismiss the election contest petition with this opinion to follow.

The issue arising from these facts must be resolved under the terms of the statutes governing election contests. § 115.527 et seq. RSMo. (Supp.1977). The statutes governing elections are a code unto themselves. The right to contest an election exists only as defined by statute, and the jurisdiction of the circuit court is confined strictly to those statutory provisions governing election contests. State ex rel Bushmeyer v. Cahill, 575 S.W.2d 229, 232 (Mo.App.1978); State ex rel Craig v. Grimm, 542 S.W.2d 335, 337 (Mo.App.1976). Illuminated by the provisions of these statutes, the facts of this case reveal inadequate service of process precluding the circuit court from gaining jurisdiction over the relator in this case.

The decisive statutory provision is § 115.-533(1), which reads as follows:

Immediately after a petition is filed, the clerk of the circuit court, shall issue a summons upon the petition to the contes-tee, returnable by the day designated by the circuit court to the circuit court. The summons shall be served in any county of the state in the same manner provided for service of process in civil actions. If the contestee cannot be found within two days, the summons shall be served by leaving the summons and a copy of the petition at the residence address shown on the contestee’s declaration of candidacy and by posting the summons in a conspicuous place in the office of the clerk of the circuit court. (Emphasis added.)

We construe “immediately” as used in this statute to mean the same day on which the petition is filed. Were it construed otherwise, such construction would disrupt the specific time requirements established in other statutory provisions governing election contests, thereby undermining the statute’s purpose of assuring an early resolution of election disputes. State ex rel Bushmeyer v. Cahill, 575 S.W.2d at 234. This construction of “immediately” is supported by the terms of § 115.533(3), which state that “[n]ot later than four days after the petition is filed, the contestee may file an answer to the petition . . . .” (Emphasis added.) Were we to validate the procedure followed in the present case, the contestee would not have been served within the time allowed for his filing an answer. A similar conflict would also arise in applying § 115.537, which provides that “[njot later than five days after the petition is filed, a preliminary hearing shall be held to determine whether there shall be a recount . .” (Emphasis added.) Again, were we to condone the instant service, the required hearing would have been on the same day the summons was served.

Respondent has offered three cases to aid us in our construction of “immediately” as used in this context: State ex rel City of St. Louis v. Priest, 458 Mo. 37, 152 S.W.2d 109, 113 (1941) (wherein the court discusses the extensive duties of the court clerk); Llewellyn v. Spangler, 109 Mo.App. 396, 88 S.W. 1021, 1024 (1905) (“immediately” as used in context construed to mean in such convenient time as is reasonably necessary); and State v. Clevenger, 20 Mo.App. 626 (1886) (defining “immediately,” as used in context, to be equivalent to the phrase “with all convenient speed”). See City of St. Louis v. R. J. Gunning Co., 138 Mo. 347, 39 S.W. 788, 790 (1897), overruling Clevenger.

These cases are not persuasive. Aside from various material factual distinctions, none of these cases involved statutes governing elections, widely recognized as a code unto themselves. State v. Consolidated Sch. Dist. No. 4 of Iron County, 417 S.W.2d 657, 660 (Mo. banc 1967). Furthermore, the constructions given “immediately” in those cases would fail to account for the express time requirements articulated in the other election provisions discussed above and would ignore the object of celerity which pervades the election contest statutes.

To insure compliance with the time strictures of these other provisions, we further must construe the language of § 115.-533(1), “If the contestee cannot be found within two days,” to mean within two days from the filing of the petition, which would also be within two days of issuance of the summons, under our construction of “immediately.”

Under the present facts, the summons was not even issued until February 26, though the petition was filed on February 21. The sheriff served the summons the day after its issuance. Adherence to the terms of § 115.533, as construed by this court, would have entailed an attempt to personally serve relator for the first two days after the petition was filed; if the relator had not been found within that period, service of process would then have been effected by leaving the summons and a copy of the petition at relator’s residence and posting the summons in the office of the clerk of the circuit court. This was not done. Proper service in the form and manner required by law is a prerequisite to the court’s acquiring jurisdiction over the person. State ex rel. Craig v. Grimm, 542 S.W.2d at 337. Although the error may well have been the clerk’s this circumstance should not work to relator’s prejudice. Id at 338.

The improper service of process left the respondent without jurisdiction over relator, and we hereby order respondent to dismiss the election contest petition and refrain from proceeding further in this cause.

SMITH and SNYDER, JJ., concur.

      . General election date: April 3, 1979.

      . Even excluding Saturday and Sunday, February 24 and 25, the service of process was still not in aompliance with the statute.

      . Indicative of the special consideration to be given election contests and the implicit need for a speedy resolution is § 115.535: “The contested election shall have preference in the order of hearing to all other cases and shall be commenced at the date set and heard day to day, including evenings and weekends if necessary, until determined.” (Emphasis added.)


source: Caselaw Access Project

author: SNYDER, Presiding Judge.

license: Public Domain

text:
    In re Marriage of William HOWARD, Petitioner-Appellant, v. Zeola HOWARD, Respondent-Respondent.
    No. 40079.
    Missouri Court of Appeals, Eastern District, Division One.
    May 22, 1979.

      Robert M. Susman, Susman & Susman, St. Louis, for petitioner-appellant.
    Charles J. McMullin, St. Louis, for respondent-respondent.
   SNYDER, Presiding Judge.

The husband appeals from an order of the Circuit Court of the City of St. Louis denying a motion to convert a decree of legal separation to a decree of dissolution. The specific issue presented is whether the trial court properly exercised its discretion in denying the motion on the ground that dissolution would terminate health, welfare, life insurance and pension benefits furnished the wife by the husband’s union and employer. This issue naturally raises the broader question, one of first impression, of what standards should guide a trial court in exercise of its discretion in passing upon motion to convert a decree of legal separation to a decree of dissolution of marriage.

The judgment is affirmed in part, reversed in part, and remanded with instructions.

The parties were married in 1943 or 1945 in Columbus, Mississippi. They separated in 1964 and have lived since that time in separate residences. In April of 1974 the husband filed a petition for dissolution, alleging the separation and irretrievable breakdown. In her amended answer, cross-bill and counterclaim the wife denied irretrievable breakdown and requested separate maintenance and legal separation. After a trial of the issues, a decree of legal separation was entered on December 20, 1976. Maintenance, support and custody orders were made and the parties’ property divided. The husband was also ordered “to retain and keep in full force and effect all employee’s and union member’s medical, hospital, pension, welfare, benefit programs and insurance plans and specifically name respondent as beneficiary thereof within 20 days of the date of this decree and he is to retain, maintain and continue in force all life insurance policies, and name therein respondent as said owner and beneficiary thereof within 20 days of the date of the decree.”

On May 12, 1977 the husband filed a motion to convert the decree of legal separation into a decree of dissolution, alleging he and his wife had not communicated with each other since the granting of the legal separation and had made no attempt to reconcile their differences and preserve their marriage. A hearing was held on this motion on July 22, 1977 and the husband presented evidence showing no efforts at reconciliation since the decree . had been granted. In response, the wife stated her opinion that the marriage was not irretrievably broken. No expert testimony or competent documentary evidence on the issue of health, welfare and insurance benefits was produced. The wife testified the husband had told her dissolution would cut off all her benefits. The wife’s counsel also read into evidence the husband’s answer to an interrogatory which stated that the husband’s counsel believed dissolution would terminate the wife’s eligibility for the benefits. The answer also outlined the benefits provided by the employer and union. The wife had continued to receive medical benefits after the decree of legal separation was issued, but it was not absolutely clear that legal separation would not reduce her benefits in some way.

Further testimony on the wife’s health, income and use of the available health benefits was heard on October 7, 1977. On January 16, 1978 the trial court entered judgment denying the motion to convert the decree of legal separation into a decree of dissolution. In its memorandum opinion the court found the wife was in poor health, of limited financial means and in “direct, immediate and continuing need of the benefits secured to her in the present Decree of Legal Separation.” This appeal followed.

Section 452.360.3, RSMo Cum.Supp.1975, the statutory section to be construed here, provides: “No earlier than ninety days after entry of a decree of legal separation, on motion of either party, the court may convert the decree of legal separation to a decree of dissolution of marriage. [Emphasis added].”

The legislature, in enacting the legal separation sections of the Dissolution Act, took a different position than the drafters of the Uniform Marriage and Divorce Act. Section 302(b) of the Uniform Marriage and Divorce Act [9 ULA Matr., Fam., & Health Laws (1973)] provides: “If a party requests a decree of legal separation rather than a decree of dissolution of marriage, the court shall grant the decree in that form unless the other party objects. [Emphasis added].” Missouri chose to delete the emphasized phrase and provide, instead, a mandatory legal separation at one party’s request [Section 452.305.2; McRoberts v. McRoberts, 555 S.W.2d 682 (Mo.App.1977)] and a mechanism for converting the legal separation into a decree of dissolution [Section 452.360.3].

By choosing this plan and selecting the word “may” in § 452.360.3, the legislature intended to place the decision to convert the legal separation in the sound discretion of the trial court. See, Bloom v. Missouri Board for Architects P.E. & L.S., 474 S.W.2d 861 (Mo.App.1971). It is clear, however, that the trial court’s exercise of that discretion must be guided by the legislative intent evidenced by the other language of the section and the general philosophy of the act.

In McRoberts v. McRoberts, supra, the court was presented with the conflict between the mandatory provision of §§ 452.-305.1 and 452.305.2. Although it did not reach the issue raised here, the court in commenting upon § 452.360.3 stated, at page 684, that it:

[G]ives the court authority to convert the decree of legal separation to one of dissolution of marriage on the motion of either party, which can mean only that the further legislative intent was to give the parties a ‘cooling off’ period for their marital differences for a ninety day period.

This court agrees with the McRob-erts court that the purpose of § 452.360.3 is to allow the parties a period of time to gain perspective on their problems and have second thoughts about separation and dissolution, thereby encouraging efforts to resolve their differences. The trial court’s discretion comes into play in interpreting whether the acts or events in evidence actually raise such a prospect in evaluating the likelihood of reconciliation, and in estimating the additional time the parties need, if such is the case, to resolve their differences and repair their marriage. If the facts developed at the hearing on the motion indicate no efforts at rapprochement have been made, or that efforts have been made and have failed, then the motion to convert to dissolution should be granted.

At the hearing on July 22, 1977 the husband testified no efforts at reconciliation had been made. The wife presented no evidence of events or conduct following entry of the decree of legal separation which raised any prospect of reconciliation. In light of this testimony, and the fact that the parties had been separated for thirteen years, the prospect of reconciliation was remote, and the motion to convert should have been granted.

It is consistent with the remedial purposes of the Dissolution Act to convert the decree to dissolution in the absence of any real prospects for current or prospective reconciliation. Maintenance, support, property division and other orders should then be entered to fairly arrange the parties’ finances and assure adequate support for a financially dependent spouse. Individual economic circumstances cannot override the basic philosophy and purpose of the Dissolution Act, which is the dissolution of irretrievably broken marriages. The parties’ finances should not be made the basis for denying dissolution when the evidence clearly shows the marriage is broken far beyond any prospects of repair.

In the vast majority of cases the discretion allowed the trial court in § 452.-360.3 should extend only to determining whether there is a possibility of reconciliation. Only in very rare cases would it be appropriate for the trial court to deny conversions when there is no evidence showing reconciliation to be possible.

This is not such a situation. An adequate remedy for the wife’s loss of medical and pension benefits may be fashioned through a maintenance order or by entry of an order directing payment of premiums for comparable coverage. The husband could also be directed to designate the wife as beneficiary of all employee and union benefits where he has that power.

This court appreciates the problems of the trial court and the parties in this litigation and would much prefer to be able to hand down a final decision. On the present record that course is not possible and it is with reluctance that the cause is remanded. The judgment sustaining the wife’s motion to quash and dismiss the husband’s motion to convert is reversed. The judgment denying the husband’s motion to convert is reversed. In all other respects, including the award of $500 to the wife for attorneys’ fees, the judgment is affirmed.

The trial court is instructed to hold an evidentiary hearing at which testimony or competent documentary evidence may be produced on present and alternative insurance plans and possible modifications in the maintenance order. Without intending to limit the trial court’s inquiry, evidence on the following points may be helpful in drafting a fair and informed order:

1. the actual terms of the insurance and pension plans now in effect;
2. whether coverage under the current plans actually ceases at dissolution;
3. the cost and availability of comparable medical coverage for the wife;
4. actual past costs of the wife’s medical care, prescriptions and dental bills; and,
5. the wife’s age, reported income and possible eligibility for other medical assistance.

After hearing the appropriate additional evidence concerning maintenance and health care, the trial court shall enter a decree finding irretrievable breakdown and ordering dissolution, along with a maintenance award which will adequately provide for the wife’s needs.

The judgment is affirmed in part, reversed in part and remanded with instructions.

WEIER, C. J., and SMITH, J., concur.

      . The issue of religious grounds for opposition to conversion is not raised by the pleadings or record and will not be reached.


text:
    Robert M. WILLIAMS, Appellant, v. CITY OF ST. LOUIS, Respondent.
    No. 40231.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 22, 1979.

      Daniel J. McMichael, Fitzsimmons & Fitz-simmons, Clayton, for appellant.
    Timothy G. Noble, Assoc. City Counselor, St. Louis, for respondent.
   REINHARD, Presiding Judge.

This suit involves an appeal from the denial of a claim made under the Workmen’s Compensation Act. The facts appear as follows:

Claimant had been employed as a salaried deputy sheriff by the City of St. Louis Sheriff’s Department from June, 1971, until April, 1973. Claimant was initially appointed by the Sheriff after having been interviewed by both the Sheriff and a committee of circuit judges. In April, 1973, his employment was terminated. However, obviously desirous of maintaining his many friends and contacts amongst the Sheriff’s Department staff, claimant persisted in visiting the office on a continuous, if somewhat sporadic, basis. That is to say, while he did not maintain a consistent schedule, he would visit the Sheriff’s office anywhere from one to four times a week, sometimes staying three to five hours at a time.

While so visiting, claimant would occasionally help the deputy sheriffs who were engaged in the performance of their regular duties. Claimant was never rehired and, this volunteered “assistance” was performed gratuitously.

Some employees of the Sheriff’s office testified that they had seen claimant running errands, assisting other officers transport prisoners, etc., and often saw claimant in those sections of the department that were off-limits to the general public.

On October 29, 1973, claimant sustained the injury for which he now seeks compensation. On this particular day, claimant was to lunch with deputy sheriff Graffort, but Graffort was to first escort seven prisoners to the City Jail. As Graffort was apparently expected to escort all seven alone, and because claimant felt this to be too many prisoners for one man to handle, claimant asked if he could help. Graffort assented. While so escorting these prisoners, they turned on Graffort and claimant. A scuffle ensued resulting in permanent damage to claimant’s left eye which ultimately necessitated its removal.

The referee found that claimant was not an employee. On appeal the Labor and Industrial Relations Commission affirmed the referee’s award. The claimant appealed to the Circuit Court which affirmed the Labor and Industrial Relations Commission. Although claimant cites as error numerous actions of the trial court, the Labor and Industrial Relations Commission and Workmen’s Compensation referee; basically, the issue presented is a simple one, i. e.: Was claimant an employee within the meaning of the Workmen’s Compensation Act at the time of his injury on October 29,1973? The answer is no.

Claimant is correct in maintaining that the ultimate resolution of the existence of the employer/employee relationship (or lack thereof) is a question of law reviewable by this court. Saxton v. St. Louis Stair Co., 410 S.W.2d 369[3] (Mo.App.1966). As such, we are not absolutely bound by the Commission’s finding on this issue and may review the record in its entirety, but we will not set aside the Commission’s judgment unless there is no substantial competent evidence to support it, or unless its findings are clearly contrary to the overwhelming weight of the evidence. Ferguson v. Hood, 541 S.W.2d 19[1] (Mo.App.1976); Webb v. Norbert Markway Const. Co., 522 S.W.2d 611[3] (Mo.App.1975); Roux v. Dugal’s Big Star Food Store, 510 S.W.2d 810[2-3] (Mo.App.1974).

Although ascertaining whether one is an employee is indeed a question of law, such a determination is necessarily predicated upon certain findings of fact. The necessary factual findings were twofold: First, that claimant was “in the service” of the Sheriff’s Department, and that said service was “controllable.” Saxton, supra.

Claimant admitted that no member of the Sheriff’s Department, with or without authority, so much as intimated to claimant that he was rehired in any capacity whatsoever. Chief Deputy Sheriffs Mahfood and Linton each testified that such was the case, as did Deputies Graffort and Davis. Claimant himself testified that no one gave him the impression by their words or actions that they exercised any degree of control over his person or activities. This evidence was undisputed. The most their collective actions indicate was an acquiescence to claimant’s visits in order that he might visit friends and renew old acquaintances. This does not constitute the degree of control required to establish an appointment or election as contemplated by the courts of this state. Orphant, supra; Sax-ton, supra.

After having reviewed the entire record, it does not appear that the Commission’s judgment had no substantial evidence to support it nor were its findings clearly contrary to the overwhelming weight of the evidence.

The judgment of the circuit court affirming the final award of the Commission denying compensation is affirmed.

GUNN and CRIST, JJ., concur.

      . Furthermore, Orphant v. St. Louis State Hospital, 441 S.W.2d 355 (Mo.1969) recognizes that one need not be a party to an express or implied contract, but may be deemed an employee if he performs this “service” either by “appointment or election.” The Orphant court stated at page 360, “We have no hesitancy in ruling that as a volunteer dance therapist, claimant was occupying a position of trust at the St, Louis State Hospital and that she was designated as such by the person having authority therefor, namely, the Supervisor of Volunteer Services for the hospital.” (Emphasis added).


text:
    Michael S. GOODWIN et al., Appellants, v. James P. GOODWIN et al., Respondents.
    No. 40649.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 22, 1979.
    Jules Q. Strong, Tyree C. Derrick, St. Louis, for appellants.
    R. E. Keaney, St. Louis, for respondents.
   REINHARD, Presiding Judge.

This is a stockholders’ derivative action in which plaintiff stockholders sought from certain directors of the corporation the recovery of money improperly borrowed from the corporation and not repaid. Plaintiffs appeal from the dismissal of their second amended petition for failure to state a claim on which relief could be granted. The petition was dismissed for failure to allege either facts showing that plaintiffs had made demands on the Board of Directors for relief or facts showing that such demands would have been futile.

In reviewing the granting of a motion to dismiss for failure to state a claim on which relief could be granted, the appellate court is confined to the face of the petition. On such review, the court shall accept as true all facts well pleaded in the petition and shall construe the petition liberally, giving the pleader the benefit of all reasonable inferences fairly deducible from those pleaded facts. Morgan v. Morgan, 555 S.W.2d 378, 380 (Mo.App.1977); Kipper v. Vokolek, 546 S.W.2d 521, 524 (Mo.App.1977). If the facts pleaded and all reasonable inferences, considered in the light most favorable to plaintiffs, show a basis for relief, the petition should not be dismissed. Trotter v. Sirinek, 515 S.W.2d 67, 67-68 (Mo.App.1974). With these principles guiding us, we turn our judicial scrutiny upon the plaintiffs’ petition.

Plaintiffs’ second-amended petition, the object of the court’s dismissal, makes the following allegations as a basis for the relief sought by plaintiffs. The named plaintiffs are Michael Goodwin, Thomas R. Goodwin and Mercedes G. Strong; the named defendants are James P. Goodwin and Daniel J. Goodwin, both individually and as trustees of a trust created by Joseph T. Goodwin. Plaintiffs bring this action for the benefit and on behalf of Goodwin Brothers Printing Company, a Missouri corporation. Of the 1500 shares of stock issued by Goodwin Brothers Printing Company, all but 192½ shares are owned by the plaintiffs and defendants, in the following amounts: Mercedes Strong — 176⅜ shares; Thomas Goodwin — 176⅜ shares; Michael Goodwin — 176⅜ shares; James P. Goodwin —388¾ shares; and Daniel J. Goodwin— 388¾ shares. The Board of Directors of the subject corporation comprises the following five members: James Goodwin, Daniel Goodwin, Patrick Goodwin, Michael Goodwin and Mercedes Strong. As well as being directors, the defendants are also officers of the corporation.

The petition then goes on to allege certain improprieties against defendants, purportedly involving the improper withdrawal by Daniel Goodwin and Joseph Goodwin of corporate assets and the failure to repay these amounts to the corporation. The allegations regarding Joseph Goodwin also complain of his creation of a trust, with defendants as trustees, the purpose of which was allegedly to avoid the repayment of the corporate funds, all contrary to the laws of this state. Such conduct is further alleged to be to the injury and damage of the corporation. In regard to the conduct of Joseph Goodwin and to his trust, the petition makes the general allegations that the said officers and agents of the corporation have failed and still refuse to take any action for the benefit of the corporation concerning the trust.

Paragraph 17 of the petition contains the allegations most directly touching the issue of this appeal. For that reason, we quote its relevant portions:

. Plaintiffs further state that demand was made upon the defendants, James P. Goodwin and Daniel J. Goodwin, as directors of the defendant corporation that they take appropriate action to collect the funds . . wrongfully withdrawn from the said corporation, but that the said defendants failed and refused to take any action to collect the . money due the corporation, and plaintiffs made demand upon James P. Goodwin and Daniel J. Goodwin as directors and as shareholders of the . [corporation] to take action to collect the sums due, but that they as directors or stockholders failed to take any action to do so.

Plaintiffs next allege in Paragraph 18 that, in discussions concerning this matter, defendants referred plaintiffs to defendants’ attorney and that requests for action were made on defendants as directors and stockholders through their attorney, but that defendants as directors and stockholders have still “failed and refused to take any action to alleviate or recover the misappropriated funds.” The petition makes further allegations not significant to this appeal and concludes with a prayer for judgment against defendants, individually and as trustees.

Defendants assert that the petition failed to properly allege facts showing that plaintiffs had made the requisite demand for relief on the Board of Directors, and that therefore the court was correct in dismissing the petition. Plaintiffs contend that their petition, when liberally construed, contains the necessary allegations of demand on the directors, or in the alternative, alleges facts which show that such demands would have been futile. The current of the law carries us to defendants’ position.

The law is well-settled as to the elements necessary to maintain a derivative action by shareholders in a corporation. To withstand a motion to dismiss in such a derivative action, a petition must allege “with particularity” that plaintiff has made demand upon the Board of Directors to take remedial action on behalf of the corporation, and that effort failing, that plaintiff has unsuccessfully sought action by the stockholders as a body. To come within the exception to this requirement, the plaintiff must allege a state of facts from which it appears that such efforts or demands would have been useless and unavailing. Rule 52.09; Saigh v. Busch, 396 S.W.2d 9, 17 (Mo.App.1965), citing Punch v. Hipolite Co., 340 Mo. 53, 100 S.W.2d 878, 884 (1936); Goldstein v. Studley, 452 S.W.2d 75, 78 (Mo.1970). Failure to allege either the making of the demand or facts excusing that requirement will warrant dismissal of a petition for failure to state a cause of action. Saigh v. Busch, 396 S.W.2d 9.

Accepting as true the allegations in plaintiffs’ petition, we find that the corporation had five directors, two of whom were defendants, two of whom are plaintiffs, and the fifth of whom was Patrick Goodwin. Although plaintiffs did allege that they made demand on defendants, and assuming they not need allege a demand on themselves, they nevertheless failed to allege any demand on Patrick Goodwin, the fifth and deciding director. Nor did they make any allegations to justify the conclusion that, if asked, Patrick Goodwin would refuse to follow his duty as a director. Punch v. Hipolite Co., 340 Mo. 53, 100 S.W.2d 878, 885. These omissions are fatal to their petition. The failure to allege any demand of director Patrick Goodwin, assuming a split between defendant directors and plaintiff directors, results in the petition’s failing to show the necessary demand on the Board of Directors.

Moreover, we cannot find that facts alleged showed the futility of such a demand. In this case, although the defendants did control a majority of the stocks of the corporation, they did not constitute a majority of the Board. See O’Maley v. ISC Industries, Inc., 519 S.W.2d 346, 349 (Mo.App.1975). Assuming that defendants would have refused to take action against themselves, a request of all the members of the Board might have resulted in a 3-2 majority favoring the action requested by plaintiff. As noted above, there was no allegation tending to show that the unasked director would have refused the requested action. The plaintiffs failed to bring their petition within the exception excusing the necessary demand on the Board of Directors. For the above reasons, the dismissal of the petition was proper.

Judgment affirmed.

GUNN and CRIST, JJ., concur.

      . Goodwin Brothers Printing Company is the alleged record owner of the remaining 192‘/2 shares.


author: CLEMENS, Senior Judge.

text:
    STATE of Missouri, Respondent, v. Terry Lee JONES, Appellant.
    No. 40133.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 29, 1979.

      Robert C. Babione, Public Defender, Blair K. Drazic, Asst. Public Defender, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Jefferson City, Michael P. Donegan, Asst. Attys. Gen., Columbia, George A. Peach, Circuit Atty., James McCarney, Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Senior Judge.

A jury found defendant guilty of first degree robbery (Count I) and also guilty of armed criminal action (Count II). The trial court sentenced defendant, a former felon, to consecutive terms of twenty and three years’ imprisonment.

On appeal defendant first seeks reversal on the ground of double jeopardy because the jury returned signed verdict forms finding him both guilty and innocent on each count. These verdicts were immediately corrected by the jury filing only the guilty verdicts. We deny this point. Alternatively, defendant seeks a new trial on the ground of a hearsay statement by another suspect implying that defendant, not he, had committed the robbery. We grant this point.

Defendant’s double jeopardy claim arose in this way: The trial court furnished the jury with four verdict forms separately permitting the jury to find defendant guilty and not guilty on each count. When the verdict forms were returned the court first read one finding the defendant not guilty as to Count I and was promptly interrupted by the jury foreman saying, “No, no, no. I’m sorry, sir. I guess I was nervous. I signed both of them. And I just now realized I should not have.” The court then determined that the foreman had signed all four verdict forms. The foreman declared it was his mistake because the jury had found him guilty on both counts. The court instructed the jury to retire and return with the proper forms and gave them four new forms “to be signed by whatever verdict you reach.” The jury returned eleven minutes later with verdicts of guilty on each count.

Defendant’s basic contention is that two of the original verdict forms found him not guilty, and for the trial court to consider the guilty verdict forms constituted double jeopardy. This ignores the law that when a jury returns a patently ambiguous verdict the trial court has the duty to direct the jury to retire and return with a proper verdict reflecting their true decision. See Keyes v. Chicago, B. & Q. Ry. Co., 326 Mo. 236, 31 S.W.2d 50 [1] (1930) and Glaves v. Old Gem Catering Co., 18 S.W.2d 564 [6] (Mo.App.1929) which squarely refute defendant’s contention. We deny defendant’s claim for reversal because of double jeopardy and consider his trial objection to hearsay testimony.

In court the victim identified defendant as the robber. Two bystanding witnesses — one definitely and tentatively— also identified him. Defendant does not challenge the sufficiency of the evidence.

The state’s first witness was Detective Ronald Young, on whose hearsay testimony defendant bases his contention of prejudicial error. Detective Young testified he showed the victim a group of five photographs, including those of defendant and also of Ed Wiley. From these the victim identified Ed Wiley as the robber. Detective Young sought out Wiley and testified: “After speaking with Ed Wiley I . then put out a wanted on our computer for the arrest of [defendant] Terry Jones.” Defense counsel objected and moved for a mistrial on the ground the state had brought in “a hearsay implication by this Mr. Wiley that Jones was the robber.” The court denied defendant’s motion for a mistrial, and also denied his motion to instruct the jury to disregard the detective’s comment about having defendant arrested after he had talked to Mr. Wiley. By these rulings the trial court clearly condoned jury consideration of the hearsay statement. Defendant squarely preserved his point in his motion for a new trial and this appeal.

Clearly it would have been inadmissible, as hearsay, for the state to produce direct evidence that Ed Wiley had “fingered” defendant as the robber. Had the state produced Wiley he would have to testify under oath and be subjected to cross examination. The state avoided this by having detective Young testify that after talking with Ed Wiley he immediately put out an arrest order for defendant. The implication is clear that Ed Wiley had told Detective Young that defendant was the robber. Defendant was thereby deprived of his right to sworn testimony and the right to confrontation and cross examination.

A similar issue arose in the case of State v. Chernick, 280 S.W.2d 56 [2-4] (Mo.1955). There, over objection, the circuit attorney testified that after talking with one Scholl, a robbery participant, he put out an arrest order for defendant. Finding this was reversible error, the court held: “Now the same considerations which would have invoked the rule excluding hearsay evidence of the actual assertions of Scholl would forbid that any inference against defendant should be drawn from the conduct of the Circuit Attorney actuated by what Scholl may have said.” The court explained: “The essential principle of the hearsay rule is that for the purpose of securing trustworthiness of testimonial assertions, and of affording the opportunity to test the credit of the witness, such assertions are to be made in court, subject to cross-examination.”

Chernick was followed in State v. Johnson, 538 S.W.2d 73 (Mo.App.1976), a robbery case, where a sheriff testified that after he had talked to one robbery suspect he arrested the defendant. Reversing, the court ruled: “The clear inference immediately suggested and convincingly supported by the above-quoted testimony of Sheriff Shelly . . that gunman Jones had implicated defendant Johnson as a coparticipant in the Sportster robbery, probably was as prejudicial as whatever Jones actually had said; and the same considerations which would have excluded the hearsay statement of Jones . . . Thus, Shelly’s testimony inferentially disclosing that an alleged co-participant had implicated defendant in the robbery ‘was just as much hearsay and objectionable as the implicating statement itself would have been.’ ” In a footnote the court added: “The absence of an opportunity to cross-examine Jones, the alleged coactor, also denied to defendant Johnson his constitutional right to confront the witnesses against him face to face.”

Having concluded that admission of the challenged evidence was erroneous, we consider whether it was prejudicial, as defendant contends, or harmless, as the state argues, because of the unchallenged mass of incriminating evidence.

Reversing defendant’s conviction for the admission of irrelevant evidence in State v. Crane, 559 S.W.2d 294 [7] (Mo.App.1977) we held: “Error in the admission of evidence should not be declared harmless unless it is so without question. State v. Degraffenreid, 477 S.W.2d 57 [14] (Mo.1972). Error is not harmless where the record fails to demonstrate defendant was not injured by the error as by showing the jury disregarded or could not have been influenced by the evidence. State v. Wynne, 353 Mo. 276, 182 S.W.2d 294 [9] (1944). . . . In Switzer v. Switzer, 373. S.W.2d 930 [13-17] (Mo.1964), the court declared: ‘Evidence in any suit should be relevant; and evidence that throws no light on the controversy should be excluded as it tends to confuse the issues and operate to prejudice a party before the jury.’ ”

Nor can we accept the state’s argument that in view of the other unchallenged evidence of guilt it was harmless to admit the evidence of Detective Young’s statement that his conversation with suspect Ed Wiley had led to him arresting the defendant. In State v. Garrett, 564 S.W.2d 347 [2-5] (Mo.App.1975), we considered the limitation on the judicial role in declaring harmless error. We held: “For a court to so determine, of necessity it must be able to declare beyond doubt that the tainted evidence did not affect the jury in its fact-finding process. It is, of course, the jury’s sole prerogative to believe, or disbelieve, all or part of any item of evidence. An appellate court has no way of knowing — and should not speculate about — what evidence a jury did or did not believe and the extent to which that evidence entered into the jury’s decision-making process. The rationale of these principles is capsulized in the judicial pronouncements that ‘error in the admission of evidence should not be declared harmless unless it is so without question’ (State v. Degraffenreid, 477 S;W.2d 57 [14] (Mo.1972)), and that the record must “demonstrate that the jury disregarded or could not have been influenced by the evidence.” (State v. Wynne, 353 Mo. 276, 182 S.W.2d 294 [9] (1944)).”

In sum, we hold the trial court erred prejudicially in admitting Detective Young’s statement as to arresting defendant pursuant to his conversation with suspect Ed Wiley.

Reversed and remanded.

REINHARD, P. J., and GUNN, and CRIST, JJ., concur'.


author: SMITH, Judge.

text:
    Paula RAINES, Appellant, v. Loren K. RAINES, Respondent.
    No. 39415.
    Missouri Court of Appeals, Eastern District, Division One.
    May 29, 1979.

      Wion, Burke & Boll, Robert S. Moss, Clayton, for appellant.
    V. Jack Muehlenkamp, Dellwood, for respondent.
   SMITH, Judge.

Wife appeals from a judgment in a dissolution of marriage case. Specifically, she attacks the court’s (1) award of maintenance, (2) award of child support, (3) award of attorney’s fees and (4) order providing for temporary custody of the minor child with the husband. Respondent husband has filed no brief in this court.

The wife was eighteen at the time of marriage, the husband — twenty. The parties were married for fifteen months before their initial separation and eighteen months before their final separation. The minor son was less than a year old at the time of separation and two years old at the time of the decree of dissolution. During the eighteen months of the marriage prior to separation, the husband held about six different jobs. Wife was not employed. The family lived in a $160 per month apartment; there was frequently a shortage of food; husband illegally drew unemployment compensation while he was working in order to maintain the family standard of living. While they were living together the wife notified authorities of her husband’s illegal conduct. As a result he began paying back to the State $2300 in improperly received benefits and at the time of hearing still owed the State $600. Approximately six months before the hearing (but after separation) husband began employment at the Chrysler plant in St. Louis County at a gross pay of $295 per week, and a net of $210. He frequently worked overtime and on some occasions made as much as $500 gross per week. In the six month period of employment before the hearing the husband was off two weeks for plant, holiday, was laid off three or four weeks for changeover, and was on sick leave for six or more weeks. When on leave husband would draw $100 per week compensation much of which was used to pay back his unemployment compensation debt. Husband’s income and expense statement showed regular monthly and personal expenses of approximately $700.

Wife had no income from the time of separation until the hearing except for $100 per month aid to dependent children. She is a high school graduate with some college work, in good health, can type 65 words a minute and can take dictation from a machine. She made some efforts to obtain employment after separation but these efforts could be considered minimal and were only indefinitely and generally described. She did work part time at a fast food restaurant but quit that employment because the pay ($40 a week) was too low. She plans to enroll in a six year college course to obtain a secretarial degree although her information on this program was based solely upon a telephone call to a junior college. Her income and expense statement reflected estimated expenses of $289.20 per month for shelter, utilities, automobile operation, and insurance.- She lived with her parents pending the dissolution and has neither automobile nor driver’s license. Her personal expenses were estimated at $235.50 per month and her child’s expenses at $237.10 per month. Medical and dental bills for wife and child totaled $131 per month and were based on a selected month’s expenses. Her only listing of child care payments was $30 per month based upon one occasion when she paid her parents that amount when she went on a week-end trip.

There was no marital property of consequence. There were substantial debts, several incurred by the husband prior to marriage.

The court awarded wife $25 per week maintenance for two years, $30 per week child support, $450 in attorney’s fees, and granted the husband temporary custody from 1 p. m. to 5 p. m. on alternate Saturdays- and Sundays and on alternate holidays and one week during the summer.

We find it unnecessary to set forth the evidence adduced concerning the husband’s fitness to have temporary custody. Suffice it to say that the wife’s testimony came from herself, her brother, her sister, and a friend and was denied by the husband. The testimony reflects that the wife is over-protective of the child. . The trial court could have concluded that the claim of unfitness of the husband was based upon that over-protectiveness, the wife’s family’s rigid religious morality, some early and infrequent occurrences, and improbable testimony by the wife’s witnesses. The trial court is the judge of credibility of the witnesses and we defer to its determinations in that regard. The award of temporary custody is based upon substantial evidence and is affirmed.

Under Sec. 452.335 R.S.Mo.1973, maintenance may be awarded by the trial court after it determines that one spouse lacks sufficient property or is unable to support himself sufficiently to meet his reasonable needs. Brueggemann v. Brueggemann, 551 S.W.2d 853 (Mo.App.1977). We will accept here the proposition that the wife does not have sufficient property to meet her reasonable needs. We cannot say that the wife’s evidence conclusively showed her inability to support herself. We note particularly that she did not assert that her custody of the child precludes her from employment and in fact her testimony reflects her intention to seek additional schooling on a full-time basis. See Cissell v. Cissell, 573 S.W.2d 722 (Mo.App.1978) [6]. However, the court made an award of “rehabilitative maintenance” and we will assume it found that additional education was necessary for her to achieve her proper level of supportive ability and we will defer to that finding. Paragraph 2 of Section 452.335 provides that the maintenance awarded shall be just, based upon seven non-exclusive factors. It is apparent that that section does not contemplate that the court must award maintenance adequate to meet all of the needs of the to-be-maintained spouse even if the maintaining spouse has sufficient resources to provide such support. Rather, the court is to look to the circumstances of the parties and the marriage to determine what may “justly” be required of the maintaining spouse. It may be conceded that husband apparently has adequate resources to provide a greater portion of the wife’s needs than the court has ordered, but that does not mean he must. The court concluded that no more than two years of partial support was necessary for the wife to gain sufficient training to support herself. We share the trial court’s incredulity that six years of college is required to prepare the wife for a secretarial career. The evidence of the standard of living of the parties during the marriage is, as the wife states, sparse, but it does reveal that whatever the standard of living was it was above the family’s means. Of particular consequence in assessing the trial court’s determination is the third statutory factor — the length of the marriage. Under the dissolution law the old concept of alimony as damages for breach of contract no longer applies. The fact of a marriage, whatever its length, no longer gives rise to an obligation of full support by a guilty husband as was formerly true. Here, the effective life of the marriage was from fifteen to eighteen months. Husband’s substantial earning capability did not commence until after the separation so it can hardly be considered a “partnership asset” to which the wife contributed. The trial court was warranted in concluding that justice does not require that the husband here assume the full support of a young healthy woman to whom he was married for only a short period of time and who had not removed herself from employment opportunities for any substantia] period of time. We find no error in the court’s application of the statutory criteria and find the award of maintenance to be supported by the evidence and we affirm that award.

Our review of the award for child support causes us to conclude that the award is inadequate under the statutory guidelines. (Sec. 452.340 R.S.Mo.1973) and must be substantially increased. It is unnecessary for us to review the evidence heretofore set out or the guidelines individually. It is enough to say that the considerations which we found sufficient to support the award of maintenance do not apply to the minor child. The wife’s work history (except as it establishes her financial resources), the length of the marriage, the time of the commencement of the husband’s productive earning capacity, and similar considerations do not affect the obligations of support. While the determination of maintenance is based at least in part upon statutory factors having to do with the marital relationship, child support involves statutory factors almost exclusively financial in nature. See Rodgers v. Rodgers, 505 S.W.2d 138 (Mo.App.1974) [11-13],

Upon remand additional evidence on several matters should be adduced. In view of the award of maintenance it is apparent that some amount of child care will be required if the mother is to work or go to school. This was not developed before the trial court and any award of child support must take this expense into account. The husband testified to certain medical and hospital insurance which he has from his employment and which would cover his son. No evidence was adduced of the nature of this coverage or the effect it would have on routine medical treatment of the minor. This should be developed upon remand. Also, it should be noted that the appellate courts have held that inflation and aging of the children with a resultant increase in costs should be considered by the trial court in establishing the original support award, so that modifications will not need to be made soon after the award or frequently thereafter. Johanson v. Johan-son, 569 S.W.2d. 337 (Mo.App.1978) [2-4], Because of the inadequacy of the evidence in the record on the above indicated matters we must remand for further development of the financial needs of the child.

The wife makes two challenges to the award of attorney’s fees. The first is that the trial court erred in not awarding the full amount of attorney’s fees charged by her present attorneys because she does not have adequate resources to pay the charges. The wife confuses two different issues i. e. — (1) Should an award be made and if so (2) how much. The first issue is a question of adequacy of resources of the spouse seeking the award, the second is a question of reasonableness. The court made an award of $450. The court is an expert on the reasonableness of attorney’s fees and may make its award based upon that expertise. In re Marriage of Vanet, 544 S.W.2d 236 (Mo.App.1976) [10]. It is not bound by the number of hours of work performed by counsel or the hourly charges for that work made by the attorney. Cissell v. Cissell, 573 S.W.2d 722 (Mo.App.1978) [7]. The wife had three attorneys representing her during the pendency of this action. Two of these attorneys were discharged by her, without apparent cause, on the dates when hearings were set. This case did not involve complicated matters, require extensive discovery, involve complicated financial data or marital property, present difficult legal problems nor require extensive court time. We find no abuse of the trial court’s discretion in the award of attorney’s fee.

The second point on attorney’s fees involves the court’s refusal to allow fees to wife’s first two attorneys. The court heard evidence on this at the hearing on the motion for reconsideration and then refused to make an award because “the Court does not have jurisdiction over these matters that were not presented at the original hearing on the divorce.” In fact the matter of these fees was raised at the original hearing and the court indicated that it would take judicial notice of the court file which reflected the work, at least in part, done by the first two attorneys. The matter was timely raised by proper post-trial motion and the relief requested was denied even prior to the end of the 30 day period following judgment during which the court retains jurisdiction to amend, change or modify on its own motion. Rule 75.01. See, Schenberg v. Schenberg, 307 S.W.2d 697 (Mo.App.1957); State ex rel Nilges v. Rush, 532 S.W.2d 857 (Mo.App.1975) [1-3], The court had jurisdiction and had the information before it to make an award if it chose to and we must remand on this issue to allow the court to pass on the matter. In so doing we are not holding that an award must be made. If the wife has by her actions incurred unnecessary or duplicative legal services, that is a “relevant factor” to be considered by the trial court in assessing attorney’s fees pursuant to 452.355 R.S.Mo.1975. Simply because legal services are utilized by the wife does not require that they be paid in whole or in part by the husband even if the financial factors warrant an award, unless the services are a reasonable cost of maintaining the action.

Judgment on child custody, maintenance, and the award of attorney’s fees to appellant’s present counsel is affirmed, judgment on child support and determination of attorney’s fee to prior lawyers reversed and cause remanded for further proceedings consistent with this opinion.

SNYDER, P. J., and CRIST, J., concur.

      . This is based upon the husband’s job at the time of the dissolution hearing. His past job history was not developed but inferentially, at least, would not demonstrate earning ability equivalent to that established at the time of hearing. Past, present and anticipated future employment history may be considered in determining the financial resources of a spouse. In re Marriage of Vanet, 544 S.W.2d 236 (Mo.App.1976) [4].


text:
    Herbert D. HOOKS, Jeannette Hooks, Barbara Roberts and Newell Roberts, Plaintiffs-Respondents, v. Margaret SPIES, Defendant-Appellant.
    No. 39552.
    Missouri Court of Appeals, Eastern District, Division One.
    May 29, 1979.

      Thomas B. Burkemper, Troy, for defendant-appellant.
    Jack Gallego, Troy, for plaintiff s-respondents.
   SMITH, Judge.

Defendant appeals from an adverse judgment in a quiet title action. We affirm.

The land in question is a 17.34 acre tract in Lincoln County. For our purposes title commences with a deed for the land from Leon Lovell and Phyllis L. Lovell, his wife, to Millie Hermann, a single person, dated October 1, 1955. Millie Hermann was the secretary and straw party for Herbert D. Hooks, Sr. The Lovell deed described only the 17.34 acre tract. As straw party for Herbert D. Hooks, Sr., who invested in real estate, Millie Hermann also executed a deed of trust in June 1955 to Oliver Erbs as trustee and Emil Klaas and Lucille Klaas, his wife, and Charles Gillham and Virginia Gillham, his wife, the payees of certain notes. This deed of trust described the real estate covered by the deed of trust in detail. The land involved was for subdivision development and the deed of trust provided for release of portions of the land covered by the deed of trust upon payment of the notes covering such land. All the land covered by the deed of trust was located in Lincoln County. The 17.34 acres was not included in the land covered by the deed of trust. Following the death of Herbert D. Hooks, Sr., Millie Hermann executed, in June 1960, a quitclaim deed to Esther Hooks (Herbert’s widow.now deceased) a V2 interest, to Herbert D. Hooks, Jr. and Barbara Ann Zartman (now Roberts) (Herbert’s children) a ¼ interest each in certain land in Lincoln County. The land conveyed was described in detail and included the 17.34 acres as well as all of the land covered by the deed of trust, plus some additional land. The quitclaim deed contained the following language:

“The intention of the undersigned Millie Hermann being to transfer title to any and all real estate owned by her in Lincoln County, Missouri, and it is hereby agreed that in the event any real estate now vested in her name in Lincoln County, Missouri, is not specifically above described, the same is nontheless hereby conveyed
“Grantor further agrees to execute such further documents, instruments and conveyances as may be necessary to effectuate transfer from her to Grantees herein of all real estate owned by Grantor in Lincoln County, Mo.
“Those lots in the above described subdivisions which have heretofore been conveyed by Charles Gilham (sic) and Emil Klaas, and Millie Hermann, which conveyances are recorded in the Recorder’s Office of Lincoln County, Missouri, are hereby excepted.”

It is apparent, and Millie Hermann so testified, that the purpose and intent of the 1960 deed was to transfer all property which she held as a straw party for Herbert D. Hooks, Sr. to his heirs at law.

In July 1961 the notes secured by the 1955 deed of trust were in default and a trustee’s sale was advertised. That advertisement specifically described the property to be sold and explicitly excluded those lots originally covered by the deed of trust which had been sold and released from the deed of trust. Since the 17.34 acres was not covered by the deed of trust, it, of course, was not described in the advertisement of trustee’s sale.

On August 10, 1961, the deed which created this lawsuit was executed by the widow of Herbert D. Hooks, Sr. and his children and their spouses. That deed conveyed certain property to the Klaas’, the Gillham’s and a bank president (the assign-ee of the Klaas notes). The land conveyed was specifically described. The specific description was of the land covered by the deed of trust and the advertisement, and specifically excluded certain land which had been expressly excluded in the deed of trust and certain land “previously released of record.” The 17.34 acres was not specifically described in the deed. The deed did, however, contain the following language:

“The intent and purpose of this Deed is to Quit Claim to grantees herein all real estate quit-claimed to parties herein by Millie Hermann by Quit-Claim Deed dated June 17, 1960 and recorded in Book 219 at page 597 in the Recorder’s Office of Lincoln County, Mo., excepting therefrom those tracts, lots or parcels which had been released from the Deed of Trust held on said premises by Grantees herein. This instant Quit-Claim deed is likewise meant to convey those premises on which said Deed of Trust was foreclosed, said Deed of Trust being recorded in Book 190 at Page 597 in the Recorder’s Office of Lincoln Co., Mo.”

Defendant claims that the first clause of the first sentence served to convey the 17.34 acres to her claimed predecessors in title. In the view we take of this case it is unnecessary for us to examine the validity of defendant’s chain of title from the grantees of the August 10,1961 deed for we conclude, as did the trial court, that that deed did not convey title to the 17.34 acres.

The unambiguous language of the instrument governs over any extrinsic evidence of the parties’ intent. If that language is clear and unambiguous, the intent is gathered from the instrument. “It is what the grantor said, and not what he intended to say.” White v. Meadow Park Land Co., 240 Mo.App. 683, 213 S.W.2d 123 (1948) [4-6]. Bay v. Stout Sign Co., 301 S.W.2d 786 (Mo.1957) [1-4]; Pfeiffer v. Pfeiffer, 355 S.W.2d 934 (Mo.1962) [1-5].

Each case “ ‘must be considered apart from any other case in order to ascertain its meaning in the light of the facts as they were known and considered’ by the grantor and auxiliary rules of construction should not be employed where the intention of the grantor is clearly expressed.” Knox College v. Jones Store Co., 406 S.W.2d 675 (Mo.1966) [5-7]. That intention should be ascertained from the whole instrument as gathered from the “everyday, good sense” of the language. Knox College, supra. [1-4].

Where, however, there is an ambiguity in the description of the land intended to be conveyed “the identity of the property must be gathered from the intention of the parties as shown by the instrument itself and the accompanying circumstances, such as those surrounding and connected with the parties and the land at the time. Words may, if necessary, be qualified by intendment, and particular clauses and provisions qualified, transferred, or rejected in order to ascertain the intention.” Ashauer v. Peer, 147 S.W.2d 144 (Mo.App.1941) [2-4]. The court should assume the position of the parties to the deed as nearly as possible, consider the circumstances of the transaction and read and interpret the words used in that light. Farrow v. Trickey, 374 S.W.2d 49 (Mo.1963) [1-3], And it was stated in Leeper v. Leeper, 347 Mo. 442, 147 S.W.2d 660 (1941):

“The tendency of modern decisions is to disregard technicalities and to treat all uncertainties in a conveyance as ambiguities to be cleared up by resort to the intention of the parties as gathered, from the instrument itself, the circumstances attending and leading up to its execution and the subject matter and the situation of the parties as of that time.” [5].

In arriving at our conclusion that the 1961 deed did not convey the 17.34 acres we note several matters. The specific description of the land conveyed did not include the 17.34 acres. That land is included only by reference to an expression of intention which in turn refers to two other documents. “ ‘Where the expression of the intent is doubtful and ambiguous, the most material and certain among the evidences of intent are to be selected and accredited. That which is most material and most certain in a description shall control that which is less material and less certain.’ ” Wolf v. Miravalle, 372 S.W.2d 28 (Mo.1963) [3], The expression of intent is itself ambiguous. While it refers to “all real estate” in the quitclaim deed from Millie Hermann, it also refers to' a deed of trust held by the grantees on “said premises”. The referred to deed of trust did not cover the 17.34 acres nor did it cover an additional 60 acre tract of land conveyed in the Hermann deed. There was no deed of trust on all the “said premises” conveyed by the Hermánn deed. Further the “intention” clause of the 1961 deed did not specifically convey all other land in the Hermann deed. The contrast between the “intention” clause in the 1961 deed and the Hermann deed is notable in this.

The circumstances surrounding the execution of the 1961 deed also indicate that it was not intended to include the 17.34 acre tract. The children of Herbert D. Hooks, Sr. and both Klaas’ testified that the purpose of the deed was to convey to the holders of the notes secured by the deed of trust the property which had been foreclosed pursuant to that deed of trust and which was then awaiting a trustee’s sale. The documentary evidence not only supports but compels the conclusion that that was the reason for the transaction. The Klaas’ denied ever having any interest or claim to the 17.34 acres and denied that the deed which they received was intended to convey that land. Given this background it is apparent that the language of intention used in the deed was meant to encompass all of the various lots, plats, and acreage covered by the deed of trust but nothing else. Given the fact that the deed of trust covered a large collection of land, and that certain lots within the subdivisions had been excluded from the original deed of trust and other lots had been released from the deed of trust it is not surprising that a catch-all expression of intent was used. We find no evidence, however, that that ambiguously worded catch all was meant to cover any land not subject to the deed of trust. We find, as did the trial court, that in fact the intention of the parties to the deed, gleaned from the deed itself, the prior transactions, and the circumstances of the parties was to convey only the land subject to the deed of trust and was not to convey the 17.34 acres now in question.

Defendant also asserts that Sec. 516.010 R.S.Mo.1969 bars the plaintiffs’ action. The trial court found that defendant had failed to establish possession in her predecessor from 1963 to 1967 and that therefore she had failed to establish the affirmative defense. This finding is supported by the evidence. “Seisin” embraces both possession and title and “he who does not have both of these is not seised of the land.” Lasswell Land and Lumber Co. v. Langdon, 204 S.W. 812 (Mo.App.1918) [2], There was an absence of evidence of actual possession of the land in dispute by plaintiffs after 1963. However, where land is vacant or unoccupied by any person the constructive possession is held to have been with the owner of title. Glasgow v. Missouri Car & Foundry Co., 229 Mo. 585, 129 S.W. 900 (1910) [1]. The owner of record title is presumed to have possession in the absence of evidence showing otherwise. Huston v. Graves, 213 S.W. 77 (Mo.1919) [4, 5], Plaintiffs and their mother had record title and the evidence does not show possession in another until less than ten years prior to the filing of the action in 1976. The trial court did not err in finding that plaintiffs’ suit was not barred by limitations.

Judgment affirmed.

SNYDER, P. J., and CRIST, J., concur.

      . “Actions for recovery of lands commenced, when. — No action for the recovery of any lands, tenements or hereditaments, or for the recovery of the possession thereof, shall be commenced, had or maintained by any person, . . . unless it appear that the plaintiff, his ancestor, predecessor, grantor or other person under whom he claims was seized or possessed of the premises in question, within ten years before the commencement of such action.”


author: CRIST, Judge.

text:
    Sharon A. BREECE, Plaintiff-Appellant, v. Mishka C. JETT, Defendant-Respondent.
    No. 40315.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 29, 1979.
    Armstrong, Teasdale, Kramer & Vaughan, Edwin L. Noel, Edwin S. Fryer, St. Louis, for plaintiff-appellant.
    Francis L. Ruppert, Clayton, for defendant-respondent.
   CRIST, Judge.

Motion for restitution of all benefits acquired under a circuit court judgment that was reversed on appeal.

Plaintiff obtained judgment for the sum of $17,000. Defendant did not post an appeal bond. Pending the appeal, plaintiff executed on her judgment. She thereby received $643.18 and was scheduled to receive an additional $646.43 which had been paid into the court registry as a result of the execution. Additionally, defendant paid plaintiff $1,273.85 in order that she would not further execute on her judgment.

This court reversed the $17,000 award and remanded for a new trial. Breece v. Jett, 556 S.W.2d 696 (Mo.App.1977). While that case was awaiting retrial, defendant filed a motion for restitution of $1,916.93, the amount plaintiff received on the judgment, and caused the $646.43 in the court registry to be repaid to himself. Plaintiff then filed a motion to require defendant to repay the $646.43 into the court registry. The circuit court granted the defendant’s motion and overruled plaintiff’s. Plaintiff appeals. We affirm.

Plaintiff claims equity requires that the $1,916.93 she received be deposited in the trial court registry and that the $646.43 repaid to defendant be returned to the registry until the case in chief has been determined. Alternatively, she claims defendant is entitled to neither the $1,273.85 since he paid that amount voluntarily, nor is defendant entitled to the $646.43 since plaintiff received no notice prior to the repayment of that amount. We disagree.

The payments resulted when plaintiff executed and threatened to further execute on her judgment award. Defendant’s first $643.18 payment was made pursuant to execution by court process. Defendant’s remaining payments were made in accord with a method suggested by plaintiff as an alternative to a threat of further execution and, thus, were made in lieu of execution. Accordingly, none of defendant’s payments were voluntary. The judgment became a nullity when it was reversed. Defendant is entitled to the return of his money. DeMayo v. Lyons, 360 Mo. 512, 228 S.W.2d 691 (1950).

The judgment is affirmed.

DOWD, P. J., and SATZ, J., concur.

      . The amounts received by plaintiff, i. e. $643.18 and $1,273.85, total $1,917.03 and not $1,916.93. Apparently an error was made by the parties and inadvertently adopted by the trial court. Because the discrepancy is so minute, we shall ignore it.


author: GUNN, Judge.

text:
    MODEL HOUSING AND DEVELOPMENT CORPORATION, Appellant, v. COLLECTOR OF REVENUE et al., Respondents.
    No. 39970.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 29, 1979.

      Elbert Dorsey, St. Louis, for appellant.
    James J. Wilson, Assoc. City Counselor, James E. Crowe, St. Louis, for respondents.
   GUNN, Judge.

Appellant, Model Housing and Development Corporation, sought to intervene in proceedings instituted by respondent Collector of Revenue foreclosing tax liens on certain parcels of real estate in St. Louis in which appellant alleges it has an interest as the owner or holder of deeds of trust. The trial court denied appellant’s motion for intervention. As best we are able to determine from the scanty record before us and from appellant’s brief, appeal is taken from the denial of the motion for leave to intervene. For reasons which we shall indite, we dismiss the appeal.

The appeal has been submitted to us on an abbreviated transcript as agreed by the parties. We believe it fair to utilize the appellant’s entire statement of facts contained in its brief, as it seems satisfied to bottom its appeal on those facts:

The Collector of Revenue of St. Louis, Missouri, pursuant to Section 92.700 et seq. RSMO (1974 Supp) on September 5, 1973, instituted legal proceedings (Land Tax Suit # 14), against certain parcels of land which were encumbered with tax liens. Among those parcels of land sued were certain parcels which were owned by Model Housing and Development Corporation (hereinafter called Model Housing) or upon which Model Housing had a purchase money Deed of Trust.
Sometime during the month of December, 1973, a default judgment was taken against the parcels of land included in Land Tax Suit 14. On or about March 13, 1974, Model Housing sought to intervene in the pending action and to assert certain defenses to the proceedings. Included in the transcript on Appeal is a copy of the Motion to Intervene and Bring in Third Party Defendants.
Also filed was a Notice of the Motion and a Third Party Petition, wherein Model Housing asserted its defenses to Land Tax Suit 14.
On June 18, 1974, Judge Harold Satz, sitting in Division 2 Circuit Court, City of St. Louis, denied Model Housing Motion to Intervene as per the order included in the Transcript.
On October 19,1977, Model Housing by and through its attorney, renewed its Motion to Intervene. This Motion was denied by Judge Michael Hart, sitting in Division 2 and leave was granted to seek an appropriate special writ.
On November 7, 1977, a Petition for Writ of Mandamus was filed in the Missouri Court of Appeals, St. Louis District.
On November 22, 1977, this petition was denied.
Subsequently, on November, 23, 1977, the final order in Land Tax Suit 14 was entered whereby title to the real property was transferred to the Land Reutilization Authority, City of St. Louis.
Appeal was taken on December 13, 1977.

The abbreviated transcript tells us scarcely more than appellant’s statement of facts, except that Judge Satz’ order of June 18, 1974 denying intervention found that appellant had not fulfilled essential procedural requirements for intervention including the fact that it was not timely filed. However, Judge Satz gave appellant until July 10, 1974 to seek an extraordinary writ — an action which appellant did not take until some time in November, 1977 after Judge Hart, by order dated October 19, 1977, had denied a renewed effort by appellant to intervene. Then, petition for writ of mandamus was denied by this court on November 22, 1977.

There is a substantial lacuna in the record before us concerning the default judgment designated in appellant’s statement of facts as having been issued “sometime during the month of December, 1973.” Without information regarding the content and fact of that default judgment, our decision whether appellant’s appeal contending that its motion for intervention was timely would be baseless.

It is fundamental that application for intervention as a matter ‘of right — • which appellant claims it has — must be timely, and particularly an application for intervention subsequent to trial, judgment or decree would not be timely unless substantial justice mandates otherwise. City of Bridgeton v. Norfolk & W. Ry. Co., 535 S.W.2d 99 (Mo. banc 1976).

The parameters of timeliness have been somewhat clarified by judicial decision. If application is made for intervention as of right before trial, leave to intervene is rarely denied, even though the application is made long after institution of proceedings and shortly before trial setting. State ex rel. Duggan v. Kirkwood, 357 Mo. 325, 208 S.W.2d 257 (Banc 1948); State ex rel. Transit Cas. Co. v. Holt, 411 S.W.2d 249 (Mo.App.1967). Once judgment is final the trial court loses jurisdiction over the matter. Intervention as of right is therefor precluded because no pending action exists into which the purported intervenor could intervene. City of Montgomery v. Newson, 469 S.W.2d 54 (Mo.App.1971); Alamo Credit Corp. v. Smallwood, 459 S.W.2d 731 (Mo.App.1970). The situation is less clearly defined, however, if the application for intervention is made after trial setting and before any judgment or decree has become final. See, State ex rel. Aubuchon v. Jones, 389 S.W.2d 854 (Mo.App.1965).

The record before us places us in a dilemma similar to that confronting the reviewing court in City of Hannibal v. Winchester, 360 S.W.2d 371 (Mo.App.1962), in that it gives scant background for considering the issue raised on appeal. We are unable to reach a denouement on the critical issue presented by the appellant — whether the motion to intervene was timely. We know that floating somewhere is a default judgment rendered “sometime during the month of December, 1973;” that on March 13, 1974, appellant sought and was rejected in its efforts to intervene in the proceeding in which the default judgment had been rendered. But the record given to us contains nothing about the' nature or effect of that judgment, and without some information concerning the default, we cannot resolve the issue raised by appellant.

Rule 84.08 allows an appeal to be dismissed after the appellant fails to comply with Rule 81.14(a) which provides, in part, that the transcript “shall also contain all of the record, recitals, proceedings, and evidence necessary to the determination of all questions to be presented to the appellate court for decision.” And the burden is on the appellant to provide the transcript necessary for review. State ex rel. State Highway Com’n v. Lynch, 563 S.W.2d 779 (Mo.App.1978); Empire Gas Corp. v. Randolph, 552 S.W.2d 82 (Mo.App.1977). The following from State ex rel. State Highway Com’n v. Lynch, supra at 780, is particularly appropriate to the situation here:

We have held repeatedly — in fact to the point of distraction — that while we acknowledge our duty to dispose finally of an appeal on its merits, if possible, the performance of that duty necessitates and presupposes the existence of a record upon which this court can perform its duty with some degree of confidence in the reasonableness, fairness and accuracy of its final conclusion.

The judgment comes before the appellate court clothed with the presumption that it is correct, and the appellant must establish the error. Gover v. Empire Bank, 574 S.W.2d 464 (Mo.App.1978); In re Royall, 569 S.W.2d 369 (Mo.App.1978); State ex rel. State Highway Com’n v. Lynch, supra; Corley v. Kiser, 556 S.W.2d 218 (Mo.App.1977); French v. Tri-Continental Leasing Co., 545 S.W.2d 345 (Mo.App.1976). The appellant here has failed in its duty to present a record which would allow us to dispose of the case on its merits.

The appeal is dismissed.

REINHARD, P. J., and CRIST, J., concur.

      . In view of our ruling dismissing the appeal, we need not ponder the issue whether appellant was an indispensible party to the action and whether the order denying intervention' was a final, appealable judgment. In this regard, see, City of Hannibal v. Winchester, 360 S.W.2d 371 (Mo.App.1962); Ratermann v. Ratermann Realty & Investment Co., 341 S.W.2d 280 (Mo.App.1960).