author: CLEMENS, Presiding Judge.

text:
    MARK TWAIN CAPE GIRARDEAU BANK, Plaintiff-Appellant, and William Kostman, Commissioner of Division of Finance, State of Missouri, Defendant-Appellant, v. STATE BANKING BOARD of Missouri, Defendants-Respondents, and Cape State Bank and Trust Co. and First National Bank of St. Charles, Missouri, et al., Intervenors-Respondents.
    No. 35928.
    Missouri Court of Appeals, St. Louis District, Division Two.
    June 17, 1975.
    Motion for Rehearing or Transfer Denied Sept. 8, 1975.
    Application to Transfer Denied Nov. 10, 1975.

      Hal E. Hunter, Jr., New Madrid, Hearnes, Padberg, Raack, McSweeney & Slater, St. Louis, for plaintiff.
    John C. Danforth, Atty. Gen., Charles A. Blackmar, Asst. Atty. Gen., Jefferson City, Niedner, Moerschel, Nack & Ahlheim, St. Charles, Carson, Inglish, Monaco & Coil, Cullen Coil, Hendren & Andrae, Jefferson City, Oliver, Oliver & Jones, Cape Girar-deau, McFadin & White, North Kansas City, Mueller & Statler, Jackson, for defendants.
   CLEMENS, Presiding Judge.

Plaintiff Mark Twain Cape Girardeau Bank (the proposed bank) appeals from defendant State Banking Board’s (the Board) denial of its application for a bank charter.

The proposed bank’s incorporators are seven individuals and Mark Twain Bancs-hares (Bancshares), a holding company subscribing to 90 per cent of the proposed bank’s stock. The Commissioner of Finance conducted an ex parte investigation and issued the charter. Thereafter, existing banks in Cape Girardeau, and others, appealed to the Board. Testimony during the Board’s extensive hearings primarily concerned Cape Girardeau’s commercial life, services rendered by existing financial institutions, and probable economic effects of another bank.

The Board made these findings of fact based on substantial evidence:

a. Cape Girardeau, population 31,282, and the immediate surrounding area are expected to maintain a slow, steady growth.

b. Cape Girardeau presently has three commercial banks, each with nearby “facilities” either in operation or authorized: The Farmers and Merchants Bank; the First National Bank, affiliated with the First Union Group of St. Louis; and Cape State Bank and Trust Company, in the process of affiliating with Mercantile Bancshares Corporation of St. Louis.

c. Cape Girardeau presently has three savings and loan associations, thirteen finance companies and two credit unions.

d. The above-mentioned financial institutions compete vigorously with each other.

e. The existing banks and financial institutions adequately provide for the convenience and needs of the community served by them.

f. A new bank in Cape Girardeau would impede the established banks’ expansion plans, slow their growth and hinder their ability to compete.

g. It is not clear that a new bank in Cape Girardeau would be financially successful.

h. The Bancshares holding company was formed for the purpose of acquiring ownership and control of banks in Missouri; its present purpose is to organize banks it would own and control.

i. Bancshares was the primary organizer and applicant for the Proposed Bank’s charter, and Bancshare’s activity is an attempt by a holding company to organize a bank, as distinguished from an acquisition of or an affiliation with an existing bank.

j. Bancshares is the principal and primary party applicant in that it owns over 90 per cent of the stock in the proposed bank.

Based upon the above findings of fact the Board reached several conclusions of law: 1. The proposed bank did not sustain its burden of proving that the convenience and needs of the Cape Girardeau community presently warranted the opening of a new bank in Cape Girardeau. 2. Granting the proposed charter would violate Chapter 362, V.A.M.S., statutory prohibitions against branch banking. 3. Mark Twain Bancs-hares, Inc., was not and is not a “person” who may apply for a bank charter within the meaning of the applicable Missouri statutes contained in Chapter 362, V.A.M.S.

Based upon its findings and conclusions, the Board revoked the Commissioner’s order, and the proposed bank petitioned for review in the circuit court. The circuit court adopted the Board’s findings and conclusions and entered judgment against the proposed bank. It now appeals, contending the circuit court erred in ruling that (a) the needs and convenience of the Cape Girar-deau community do not require a new bank; (b) granting the charter would violate statutory prohibitions against branch banking; and (c) Bancshares is not a “person” who by statute may apply for a bank charter.

We have considered each contention of error. We find the circuit court’s judgment on the third contention correct, and we therefore affirm the judgment denying the proposed bank’s charter.

The proposed bank correctly notes that RSMo, § 362.015 requires that a bank be incorporated by “five or more persons.” It argues that even if we interpret “persons” to mean “natural persons,” the statutory requirement was fulfilled by the presence of seven “natural persons” who were also incorporators. We disagree. Bancs-hares was the “real” applicant for the charter. It was to hold 18,150 of the 20,000 shares of the proposed bank. A Bancshares officer signed the proposed bank’s application on behalf of Bancshares and as “attorney-in-fact” for the seven individual incor-porators. Bancshares alone paid all incorporation fees. All correspondence with the Commissioner of Finance concerning the charter application issued from or was directed to Bancshares, without reference to individual incorporators of the proposed bank. The real and primary applicant for the charter was Bancshares; if it is not a qualified incorporator, the seven individuals’ ten per cent contribution of capital was plainly inadequate for incorporation.

The critical question, therefore, is whether Bancshares is a qualified incorpo-rator of a banking corporation, i. e., a “person,” under § 362.015. We hold it is not. Bancshares is a general business corporation and may not incorporate another general business corporation, since § 351.050 requires such incorporators to be “natural persons.” Chapter 362, which specifically covers banking corporations, states merely that banks may be incorporated by “five or more persons.” § 362.015, RSMo. Thus, Chapter 351 explicitly precludes a corporation from being an incorporator, and Chapter 362 does not specifically authorize it.

Two sections of the banking statutes are pertinent. § 362.015 reads: “2. When authorized by the finance commissioner as provided in Section 362.035 any five or more persons who shall have associated themselves by articles of agreement, in writing, as provided by law, for the purpose of establishing a bank or trust company may be incorporated under any name or title designating such business.” (Our emphasis).

Also pertinent is § 362.030, which declares the Commissioner of Finance “. shall cause an examination to be made to ascertain . . . whether the character, responsibility and general fitness of the persons named in the articles of agreement are such as to command confidence and warrant belief that the business of the proposed corporation will be conducted honestly and efficiently . . .”

Neither of these sections specifically empowers a general business corporation to incorporate a bank. And the context of neither section supports a clear inference of that power. Bancshares asserts it has such power by virtue of the statutory definition of “person” in § 1.020, RSMo: “As used in the statutory laws of this state, unless otherwise specially provided or unless plainly repugnant to the intent of the legislature or to the context thereof: .

“(7) The word ‘person’ may extend and be applied to bodies politic and corporate, and to partnerships and other unincorporated associations.” (Our emphasis).

We note that § 362.015 provides that five or more persons may be incorporated as a bank, and that under § 1.020(7) the word “person” may be applied to a corporation. We read the word “may” as permissive in both contexts. Bloom v. The Missouri Board for Architects, Professional Engineers and Land Surveyors, 474 S.W.2d 861[1] (Mo.App.1971). Neither section 362.-015 nor 1.020(7) mandates the conclusion that the word “person” includes a corporation. Indeed, were our interpretation based solely upon the contexts of sections 362.015 and 362.030, we would conclude that “persons” must mean “natural persons,” since the legislature requires the Commissioner to examine “character, responsibility and general fitness” in order to determine whether the “persons” applying will “command confidence” as bankers.

When the “character” of “persons” is to be ascertained, clearly the character of individuals is implied. A corporation is an artificial entity. Had the legislature intended to include corporations among “persons” whose “character” was to be examined we believe the statute would have so specified. Construction of the word “person” to include “corporation” is not required, but rather “depends upon the context and the intent with which the term is employed.” State ex rel. Burnes National Bank of St. Joseph v. Duncan, 302 Mo. 130, 257 S.W. 784[1] (Mo. banc 1924), reversed on other grounds, 265 U.S. 17, 44 S.Ct. 427, 68 L.Ed. 881 (1924). A corporation “without a brain or body, existing only on paper through legislative command, and incapable of thought or action” does not inherently possess a good, bad, moral, or immoral “character,” and the Commissioner cannot determine “fitness” of a “person” to be a banker when the “person” exists “only on paper.” See Schwab v. E. G. Potter Co., 194 N.Y. 409, 87 N.E. 670, 672 (1909). Common sense compels our conclusion that in the context of Chapter 362 concerning banking corporations the legislature intended the word “person” to mean “natural persons.”

The wording in other sections of Chapter 362 (with our emphasis added) indicates the legislature did not think of “persons” as “corporations.” Section 362.415(1), (4), and (5) are on point. Subsection 1 states, “No persons . . . shall subscribe to . or be in any way interested in any association, institution or company formed or to be formed for the purpose of issuing notes . .” The implication is that “person” is distinct from organizations. Subsection 4 states, “No person, association of persons or corporation . . . shall keep any office . ” The implication is that “person” is not a “corporation.” Subsection 5 states, “Every person, and every corporation, director, agent, officer or member thereof, who shall violate . . . .” Again, the phrasing implies that “person” excludes “corporation.”

When the legislature has used “person” in a sense broader than “natural person” it has been explicit in its definitions. See sections 196.311(8), 197.020(3), 266.291(1), and 400.1-201(30).

There is no indication from the wording of Chapter 362 that the legislature intended “persons” in section 362.015 or 362.030 to include “corporations.” There is, however, some indication from the context of these two sections and from the other sections of Chapter 362 that the legislature intended for “persons” who incorporate banks to be “natural” persons only.

But we need not construe the word “person” solely from the context of those sections. We also look to the legislative intent so that we may give the word its plain and ordinary meaning and thereby promote the object of the statute. State v. Brady, 472 S.W.2d 356[1] (Mo.1971), Wigand v. Dept. of Public Health and Welfare, 454 S.W.2d 951[10] (Mo.App.1970). The legislative intent in referring to “persons” in the banking statute is unclear. We cannot therefore assume the legislature intended the term to include other than “natural” persons. As Fletcher has stated in 1 Corporations, § 85, pp. 382-5: “Statutes providing for the formation of corporations are not to be construed as authorizing other corporations to become corporators, unless such an intention on the part of the legislature is clear, especially statutes, authorizing ‘persons’ to form corporations, wherein cannot be implied or discerned any intendment that other than natural ‘persons’ is meant. There is the further obstacle that in the absence of express statutory authority or charter power, a corporation cannot become a subscriber to the capital stock of a proposed corporation, and it is said that it cannot do so indirectly. Referring only to the latter power, it seems clear that where a statute provides that a certain number of ‘persons’ may by articles of association form a corporation, such a statute refers only to natural persons, and not to corporations.”

While the legislative intent of Chapter 362’s definition of “person” is not clear, the intent in Chapter 351, the general corporations’ statute, is clear. In Chapter 351, the legislature explicitly defines “persons” as “natural persons” and states that only “natural persons” may be incorporators. When one statute deals generally with a subject, (incorporating a general corporation) and another deals with part of that same subject in a more minute and definite way, (incorporating a banking corporation) the two should be harmonized unless the specific statute contains provisions clearly contrary to the general statute. Laughlin v. Forgrave, 432 S.W.2d 308[1] (Mo. banc 1968). We find that the incorporation provisions of the general corporations’ statute in no way contradicts the incorporation provisions of the specific banking statute, and we therefore read the two statutes together in order to achieve consistency of legislative intent. The achievement of such consistency requires reading “person” to mean “natural person” in Chapter 362, just as in Chapter 361.

Fletcher supports this reasoning by citing language of New York’s highest court in Schwab v. E. G. Potter Co., supra: “Corporations are created by statute and have no powers except those conferred by statute, directly or indirectly. . . . There is no statute in this state which directly authorizes one corporation to organize another, and . . . such action is not indirectly authorized by any reasonable inference from the most extensive powers committed to any class of corporations known to our law. Corporations are organized by natural persons, acting under the direction of a statute, and they only can become corpora-tors, directors, or officers. ‘Artificial persons’, without brain or body, existing only on paper through legislative command, and incapable of thought or action except through natural persons, cannot create other ‘artificial persons’, and those, others still, until the line is so extended and the capital stock so duplicated and reduplicated, as to result in confusion and fraud.”

We have ruled that subscription to only ten per cent of the proposed bank’s capital by seven individual subscribers was inadequate to incorporate, and that Bancshares was not a “person” qualified under Chapter 362 as an incorporator. We therefore hold that the circuit court properly affirmed the Board’s denial of the proposed bank’s application to incorporate. We do not reach the issues of “convenience and necessity” or that of “branch banking.”

Judgment affirmed.

KELLY and STEWART, JJ., concur.

      . We note that all the definitions in § 1.020 are phrased mandatorily with the exception of (7), the definition of “person.” All other definitions state that the defined word “is” or “means” or “includes” certain terms, whereas the definition of “person” states that it “may extend and be applied to bodies politic and corporate . . . ” (Our emphasis).

      . Section 351.385(6) RSMo, authorizes corporations to subscribe to shares of stock in existing corporations.


source: Caselaw Access Project

author: ALDEN A. STOCKARD, Special Judge.

license: Public Domain

text:
    Mary Jane SPECKING, Appellant, v. Robert Bernard SPECKING, Respondent, and Mark Twain Northland Bank, Garnishee of Robert Specking. Mary Jane SPECKING, Appellant, v. Robert Bernard SPECKING, Respondent.
    Nos. 35783, 35868.
    Missouri Court of Appeals, St. Louis District, Division Four.
    June 24, 1975.
    As Amended Aug. 26, 1975.
    Motion for Rehearing or Transfer to Court En Banc or Transfer Denied Sept. 8, 1975.
    Application to Transfer Denied Nov. 10, 1975.

      Joseph H. Langworthy, Jr., Pacific, for appellant.
    Fitzsimmons & Fitzsimmons, Attys., Inc., Daniel J. McMichael, Clayton, for respondent.
   ALDEN A. STOCKARD, Special Judge.

By a divorce decree entered on February 29, 1972, Mary Jane Specking was awarded custody of twin daughters Carolyn Marie and Catherine Mary, born May 13, 1954. The decree provided that “plaintiff [Mary Jane Specking] have and recover of said defendant [Robert Bernard Specking] the sum of $95.00 per month as and for the support of each said minor child; * * * There was no provision in the decree as to when or under what circumstances the support payments should terminate. However, by the use of the term “said minor child,” the implication is that the support payments should continue during minority, or until emancipation.

Most, if not all, important facts are stipulated. On September 9, 1972, Catherine Mary was married, and respondent has not paid any support for her since that date.

On July 15, 1972, Carolyn Marie “moved away from the home [of her mother] with the purpose of taking a part-time job doing housework and child care for a former high school counselor of hers and receiving room, board, some pay and part-time use of a car, and with the intention of being helped to be admitted to Meramec Junior College as a student. It was her conception that she had to be a resident of St. Louis County to be so admitted. [Her mother] lived in the City of St. Louis. Carolyn Marie later worked part time at Meramec Junior College doing clerical work. Carolyn Marie moved to live with an older sister and her husband in St. Louis County, and with some financial help from them enrolled in Mera-mec Junior College as a student. She is now working part time at 2c Plain [sic], earning $1.40 per hour in addition to her studies.” Respondent has not paid any support for Carolyn Marie since July 15, 1972.

On July 13, 1973, appellant sought an execution by garnishment against the Mark Twain Northland Bank in the amount of $1,163.00 plus interest and costs.

On July 12, 1973, respondent filed a motion to quash the writ of garnishment on the grounds (a) that Catherine Mary was married on September 9, 1972, and therefore was emancipated and respondent’s duty to pay support for her pursuant to the above decree was terminated; (b) that Carolyn Marie had moved out of her mother’s house on July 15,1972, and “is self-supporting and receiving no aid and assistance” from appellant, and for such reasons was emancipated, and therefore respondent’s duty to pay support for her was terminated; and (c) the writ of garnishment was served on Mark Twain Northland Bank as garnishee, and the only account there in which respondent has an interest is “under joint ownership of [respondent] and Mrs. Manila M. Specking” not subject to this garnishment.

On August 7, 1973 the trial court entered the following order: “Defendant Robert B. Specking’s Motion to Quash Writ of Garnishment heard and sustained.” Appellant thereafter filed three motions; one for leave to appeal as a poor person, another that she be allowed the sum of $500 for “suit money,” and the third for a new trial “on defendant’s motion to quash writ of garnishment.” All of these motions were overruled on October 22, 1973, but on October 25, 1973, the court, on its own motion, set aside its denial of the motion to appeal as a poor person, and a hearing thereon was ordered to be held on November 13, 1973. On October 25, 1973, appellant filed her notice of appeal “from the appealable order sustaining defendant’s motion to quash the writ of garnishment entered * * * on the 7th day of August 1973.”

On November 19, 1973, the court stated that it had previously set aside its ruling on the motion to appeal as a poor person and also on the motion for suit money, and that these matters would then be heard. It was at this time that the stipulation of facts between the parties was entered of record. After hearing the trial court again overruled the motions for suit money and to appeal as a poor person. Ten days later appellant filed a second notice of appeal, this “from the order denying plaintiff’s motion for allowance of suit money on appeal and motion for leave to appeal as a poor person.” Apparently this is the reason that this case is assigned two case numbers. Strictly speaking, the first appeal was premature because all issues were not disposed of at the time the appeal was taken, and the second notice of appeal does not purport to be from the order quashing the garnishment in aid of execution. However, Rule 81.05 provides that in any case in which a notice of appeal has been filed prematurely, such notice shall be considered as filed immediately after the time the judgment becomes final for the purposes of appeal. We shall consider this case as one appeal.

Appellant’s first point is that the oral motion to dismiss the writ of garnishment should not have been sustained because it was not verified as required by Rule 76.60. The verification should have been made by respondent, and when the issue was raised he was in the courtroom and could then have made the verification. We see little excuse for counsel to unnecessarily create issues on technical procedural matters. Also, Rule 76.60 was taken from, and is substantially the same as § 513.360 RSMo 1969. In State ex rel. Jones v. Howe Scale Co. of Illinois, 203 Mo.App. 350, 218 S.W. 359 (1920), it was held that the statute “does not exclude the ordinary remedy by motion to quash, unsupported by affidavit made in open court in term time.” The court in overruling the motion to quash stated that it understood that respondent was in the courtroom and would testify. However, he did not in fact testify, but appellant expressly waived the need for any testimony from respondent. The point is totally without merit.

Appellant next contends that the trial court erred in ruling that Catherine Mary was emancipated when she became married, and that Carolyn Marie was emancipated when she left her mother’s home.

“As a general rule an order for the support of a minor child, entered in an action for a divorce, separation, or the like, terminates automatically, or becomes inoperative, when the child marries and leaves the custodian’s home.” Annotation: Marriage of minor child as terminating support provisions in divorce or similar decree, 58 A.L.R.2d 355. See also Berglund v. Berglund, 474 P.2d 800 (Colo.App.1970). This is the rule in Missouri. See Meyer v. Meyer, 493 S.W.2d 42, 46 (Mo.App.1973), where it was ruled that the marriage of a minor child “operated to terminate the father’s obligation of support, even though no action was taken by him for a modification of the decree.” It is admitted that respondent paid to appellant the required child support for Catherine Mary until the date of her marriage, at which time she left the home of appellant to whom custody had been awarded. We are not unmindful of the opinion of this court in Schaffer v. Security Fire Door Company, 326 S.W.2d 376 (Mo.App.1959). It pertained to the issue of whether emancipation resulted from military service and is not controlling of this case. The trial court properly ruled that Catherine Mary was emancipated by her marriage.

As to Carolyn Marie, respondent relies primarily on Brosius v. Barker, 154 Mo.App. 657, 136 S.W. 18 (1911). It involved the issue of whether a child was emancipated and the father therefore not being liable for its medical care. It was there stated: “There are two kinds of emancipation, express and implied. Express emancipation takes place when the parent agrees with his child, who is old enough to take care and provide for himself, that he may go away from home and earn his own living, and do as he pleases with the fruits of his labor. Implied emancipation is where the parent, without any express agreement by his acts or conduct, impliedly consents that his infant child may leave home and shift for himself.” “ * * * Without further declaring general rules, we hold that where the child, who is physically and mentally able to take care of himself, has voluntarily abandoned the parental roof and turned his back to its protection and influence, and has gone out to fight the battle of life on his own account, the parent is under no obligation to support him.”

The facts of the Brosius case are in no way comparable to those of this case. There, at age 20, a son left his father’s home in Missouri and went to Oregon where he “started out for himself.” He there contracted typhoid fever, and the suit pertained to the doctor’s claim against the father for medical expenses. In this case the circumstances of Catherine Mary leaving home were set forth in the stipulation quoted above.

Under the law of this State emancipation of a minor child is never presumed, Brosius v. Barker, supra, and the express or implied consent of the parents, or at least of the one having custody, is required. Curry v. Maxson, D.C., 318 F.Supp. 842 (1970). The burden of proving emancipation is on the party asserting it. Wurth v. Wurth, 322 S.W.2d 745 (Mo.1959).

The evidence does not establish an express emancipation of Carolyn Marie. As previously noted, most of the evidence is by way of stipulation and Carolyn Marie did not testify. We do not have the situation as in Burton v. Burton, 472 S.W.2d 620 (Mo.App.1971), where the minor testified and clearly established emancipation. If Carolyn Marie was emancipated, that fact must be implied from the facts. She first went to stay with a school counselor to obtain help in entering a Junior College. She later lived with a married sister, attended school, and worked either part or full time. The only evidence concerning the release of custody by appellant who had legal custody, was the stipulation that appellant “would testify, over [respondent’s] objection that her statement was self-serving and immaterial, that plaintiff had no intention of giving up custody or control of Carolyn Marie when she moved away from home.” Appellant in fact did testify, but she was not asked about her intent to release or not to release custody, and she testified to no facts concerning Carolyn Marie leaving home that are not contained in the stipulation. Apparently appellant contributed little to her support after she left home, but if we are to engage in inferences, we could as logically infer that she did not contribute because she received no support money from respondent.

A parent having custody may give a minor child a license to work and retain its earnings. We can see nothing in the factual situation of Carolyn Marie leaving home other than that with her mother’s consent or license she left after completing high school in an effort to continue her education. In the process of doing so she lived for awhile with the school counselor and then with her married sister, and she obtained employment, full time during the summer and part time during school. This is a common practice for students who attend college. We are of the opinion that respondent has not met his burden of establishing emancipation, and that the facts do not justify such a finding.

Appellant also assigns as error the refusal of the trial court to sustain her motion to appeal as a poor person and to allow her suit money for this appeal. She cites no authority to be permitted to appeal as a poor person and has presented no argument in support of her contention. We consider that contention to have been abandoned.

The allowance of suit money is a discretionary matter with the trial court. Burton v. Burton, supra, and in view of the disposition of this appeal that issue may be considered by the trial court in subsequent proceedings.

We do not reach the issue of the right of appellant to recover from the garnishee the money held by it in the joint account as stated in the motion to quash.

The judgment is reversed and the cause remanded for further proceedings in accord with the views here set forth.

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


author: PER CURIAM.

text:
    In the Matter of SEARCH WARRANT OF PROPERTY AT 3552 GRAVOIS. STATE of Missouri, Plaintiff-Respondent, v. EROS THEATRE CORPORATION, Defendant-Appellant.
    Nos. 36082, 36256.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 8, 1975.
    Rehearing Denied Sept. 8, 1975.
    Application to Transfer Denied Nov. 10, 1975.

      Murry A. Marks, Clayton, for defendant-appellant.
    Thomas W. Shannon, Pros. Atty., Dennis Day, Asst. Pros. Atty., St. Louis, for plaintiff-respondent.
   PER CURIAM.

Defendant Eros Theatre Corporation appeals from denial of its amended motion to quash search warrant, suppress evidence and return seized property (No. 36,082), and from its conviction of exhibiting lewd films under § 563.280, RSMo 1969 (No. 36,256). After a jury waived trial, the defendant corporation was found guilty and fined $1,000. The two cases, joined below by motion of the court, remain consolidated here. For reasons hereinafter set forth, we find it necessary to dismiss the appeal.

Defendant, in the points and authorities section of its brief, has failed to comply with Rule 84.04(d) requiring “. points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous, with citations of authorities thereunder . Setting out only abstract statements of law without showing how they are related to any action or ruling of the court is not a compliance with this rule.” This rule is made applicable here by Criminal Rule 28.-18. The two points contained in defendant’s brief are as follows: “I. The Court erred in overruling appellant’s motion to quash the search warrant and erred in failing to suppress the evidence seized pursuant to said warrant”, and “II. The Court erred in (A) overruling appellant’s motion to quash; (B) erred in failing to sustain appellant’s motion for judgment of acquittal; and (C) erred in overruling appellant’s motion to dismiss.” These assignments of error are mere abstract statements and do not meet minimum requirements of the rule. They fail to state “wherein and why” the rulings of the trial court are claimed to be erroneous. “The points and authorities in an appellate brief have the definite purpose of isolating and formulating the precise issue to be reviewed and that function, if observed at all, should not be relegated to the written argument.” State v. Dennison, 428 S.W.2d 573, 579[8] (Mo.1968). The appellate court has “no duty to seine the argument portion of an appellant’s brief or the transcript on appeal to ascertain the whereins and whys of claimed errors presented in the points relied on as mere conclusions . . . ” Griffith v. State, 504 S.W.2d 324, 327[3] (Mo.App.1974). See also State v. Yearwood, 510 S.W.2d 43, 44[2] (Mo.App.1974). We therefore hold that appellant’s brief preserves nothing for appellate review. State v. Connor, 391 S.W.2d 335, 337[3] (Mo.1965); State v. Davis, 516 S.W.2d 784, 785[2] (Mo.App.1974); State v. Robbins, 455 S.W.2d 24, 25-26[1] (Mo.App.1970).

We further note that appellant’s brief was filed out of time. Counsel sought and obtained two extensions under Rule 31.02 totaling 72 days beyond the sixty-day filing period provided by Rule 84.05(a). One day following expiration of the last extension appellant’s brief was submitted.

Finally, appellant’s brief failed to include a jurisdictional statement as required by Rule 84.04(a). The fact that a statement of jurisdiction appears in his notice of appeal does not satisfy the mandate of the rule. By failing to comply with the Missouri Rules of Criminal Procedure, appellant subjects itself to the sanctions of Rule 84.08.

Appeal dismissed.

All the Judges concur.

      . All references are to VAMR.

      . Rule 84.08. “If an appellant in any civil case fails to comply with rules numbered 81.14, 81.18, 84.04, 84.05, 84.06 or 84.07, the court may dismiss the appeal at any time


author: McMILLIAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Thomas LYNCH, Defendant-Appellant.
    No. 36106.
    Missouri Court of Appeals, St. Louis District, Division 3.
    July 15, 1975.
    Motion for Rehearing or Transfer Denied Sept. 8, 1975.
    Application to Transfer Denied Nov. 10, 1975.

      Legal Aid Society, Charles W. Bobinette, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Philip M. Koppe, Preston Dean, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Judge.

A circuit court jury found defendant guilty of robbery in the first degree by means of a dangerous and deadly weapon, §§ 560.120 and 560.135, RSMo 1969. Pursuant to the Second Offender Act, § 556.-280(1), the court sentenced defendant to serve (20) twenty years in the custody of the Missouri Department of Corrections. Defendant appeals.

On this appeal defendant raises five points for reversal: (1) denial of a continuance; (2) undue limitation of his right of cross-examination; (3) two instances of a refusal to suppress identification testimony of witnesses; and (4) refusal of certain cautionary instructions. For reasons hereafter set out, we affirm.

Since defendant does not question the sufficiency of the evidence, we will set forth only those facts necessary for a disposition of defendant’s points on this appeal.

On 17 October 1975, at or near noon, four men of various sizes and descriptions, committed an armed robbery of the Vogue Sales Shop located on Manchester Avenue in the City of St. Louis. At the time the four men entered the store, Mrs. Garon Daugherty, a co-owner, was there alone with her three-year old son. During the robbery which lasted from twenty to twenty-five minutes, Linda Cope, a neighbor, and Al Breckley, a private watchman, entered the store.

Mrs. Daugherty testified that the store was well-lighted; that she got a good look at the subjects; and that she knew one of the subjects, later identified as William Walker, from prior business dealings. At the time she gave her description of the four subjects to the police, she did not give Walker’s name, but one of the police volunteered Walker’s name when he heard her description.

About four months later, Mrs. Daugherty picked defendant from a lineup and positively identified him. On trial she gave both a pre-trial and in-court identification.

Prior to the beginning of the trial, defendant’s attorney filed a verified motion for a continuance, Rule 25.08, V.A.M.R. The thrust of the motion was to gain additional time to discover and subpoena the federal agents involved in an investigation, arrest, and prosecution of Mrs. Daugherty, who, the motion alleged, had been arraigned in the Federal Court on a stolen gun charge. Defendant alleged that these agents, if present, would testify to Mrs. Daugherty’s bad reputation in the community for honesty.

Defendant concedes that the granting of a continuance is within the sound discretion of the trial court. State v. Reece, 505 S.W.2d 50, 52 (Mo.1974); Rule 25.08. But he asserts that here the trial court had abused its discretion because the denial of a continuance precluded him from introducing independent evidence showing that the general reputation of Mrs. Daugherty for veracity was bad. In State v. Cuckovich, 485 S.W.2d 16, 21-22 (Mo. banc 1972), our Supreme Court noted that it requires a very strong showing to induce an appellate court to interfere with the exercise of a trial court’s discretion in acting on motions for a continuance. It further observed that the action of the trial court would not be disturbed unless a clear abuse of discretion is shown. State v. Tettamble, 517 S.W.2d 732, 734 (Mo.App.1974).

In State v. Collie, 503 S.W.2d 445, 446-47 (Mo.App.1973), we said that when a continuance is sought on the ground of the absence of a witness, the request must give the name of the witness, where he resides, the probability of procuring his testimony and within what time, what facts the witness will prove, and the exercise of due diligence. The application filed herein fails to list the names of the witnesses sought or their addresses and fails to state the probability of securing their testimony, much less within what time.

Under the circumstances herein, we find no abuse of discretion because (1) no showing has been made that a different result would have been obtained had the absent witnesses testified, and (2) the purported testimony had no direct bearing upon the issue of guilt or innocence. State v. Reece, supra; State v. Steele, 280 Mo. 63, 217 S.W. 80 (1919).

On cross-examination, defendant’s counsel inquired of Mrs. Daugherty whether she had ever knowingly purchased stolen guns or sold stolen guns to a known felon. Defendant claimed that the purpose of the questions was to show bias, to impeach her. The State’s objections to the questions and the offer of proof were sustained.

The defendant points out, and rightfully so, that his questions made no reference to either an arrest or a present indictment. He argues that while he could not ask a witness whether or not he has ever been arrested for or charged with a crime, yet he may ask a witness questions concerning whether or not he committed or admitted committing a specific crime. State v. Foster, 349 S.W.2d 922 (Mo.1961); State v. Williams, 492 S.W.2d 1 (Mo.App.1973); and State v. Summers, 506 S.W.2d 67, 73 (Mo.App.1974).

In the Williams case, we covered this issue somewhat exhaustively in a review of the cases. We concluded that subject to a witness’s claim of right against self-incrimination a witness may be asked questions concerning whether he committed or admitted committing a specific criminal act. The purpose of such questions is to test a witness’s credibility, however irrelevant the acts may be to the facts in issue and however disgraceful the answers may be to the witness. State v. Long, 201 Mo. 664, 100 S.W. 587, 590 (1907).

To counter defendant’s contention, while recognizing the validity of his arguments for the general rule, the state urges that the allowance or disallowance of this type of questioning is discretionary with the trial court. State v. Long, supra, and Wendling v. Bowden, 252 Mo. 647, 161 S.W. 774 (Mo.1913). The court in the Wendling case, supra, citing Muller v. St. Louis Hospital Ass’n, 5 Mo.App. 390, 401, affirmed in 73 Mo. 242 (1880), with approval recognized that a witness may be compelled to answer any such question however irrelevant it may be to the facts in issue and however disgraceful the answer may be to himself, except where the answer might expose him to a criminal charge. The same court recognized, citing Goins v. City of Moberly, 127 Mo. 116, l.c. 118, 29 S.W. 985 (1895), that, if a witness is asked a question of some shameful act for the purpose of discrediting him, the person asking the question is concluded by his answer. Thus we see that there are two protections afforded the witness: (1) the right against self-incrimination, if properly claimed; and (2) the examiner is concluded by the witness’s answer so as to avoid a confusion of issues on collateral matters. In Wendling, the court quoted from the Long case: “The better doctrine would seem to be that while such questions may be asked a witness on cross-examination, it is a matter largely within the discretion of the court before whom the case is to be tried.” This statement was reaffirmed by our Supreme Court in State v. Brooks, 360 S.W.2d 622, 626 (Mo.1962); State v. Brotherton, 266 S.W.2d 712, 715 (Mo.1954) and State v. Potts, 239 Mo. 403, 144 S.W. 495, 498 (1912).

In fact, Long, Wendling and their progeny are nothing more than a particularized application of the general rule that the extent of cross-examination on collateral matters for the purpose of impeachment is a matter largely within the discretion of the trial court. In State v. Allen, 435 S.W.2d 375, 377 (Mo.1968) (court refused to permit witness to be asked whether she earned her living by prostitution); State v. Cox, 352 S.W.2d 665, 673 (Mo.1962) (whether witness stabbed her brother); State v. Brooks, supra, (whether he had violently attacked and manhandled a woman) and State v. Messley, 366 S.W.2d 390, 393 (Mo.1963) (whether witness had committed an illegal act), our Supreme Court upheld the trial court’s refusal to allow questioning a witness concerning specific acts of alleged misconduct relating to collateral matters. We hold that the latitude and extent of cross-examination on collateral issues to show specific misconduct for purposes of impeachment is initially a determination to be made by the trial court within the exercise of its discretion and will be set aside on appellate review only where it is affirmatively shown that the exercise of discretion was abused. Here there has been no such demonstration; therefore, we uphold the ruling of the trial court.

Defendant’s next claim of error raises the question as to the validity of the admission into evidence of pre-trial identification testimony which was the claimed product of an unlawful detention; that is, where there is no probable cause to support the initial arrest. The state’s evidence to support the arrest, made four months after the robbery, is meager at best. We shall, however, assume without deciding that the police arrested the defendant without probable cause.

In this posture defendant argues that the trial court should have suppressed the pretrial identification testimony of Mrs. Daugherty on the grounds that such testimony was the “poison fruit” of an illegal arrest of the defendant. He relied upon Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), where officers lacked probable cause to arrest defendant on information providing the name and address of a person selling heroin because the information was not known to be reliable and the officers did not have sufficient reason to believe the person named and defendant were one and the same person; and Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), where officer lacked probable cause to arrest a black defendant because the victim was only able to describe her assailant as a Negro youth.

We have no legal quarrel with the holding in Wong Sun that intangible evidence can be as much the “fruit” of an illegal arrest as the traditional tangible evidence of papers has previously been held to be. Nor do we question that the exclusionary rule of evidence can be applied to the direct and indirect products of illegal police activity. On the other hand, Wong Sun also held that all evidence is not “fruits of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. The court stated that the proper inquiry should be, granting the establishment of the primary illegality, is whether the evidence objected to “has been come at by exploitation of the illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Id. at p. 487, of 371 U.S., at p. 417 of 83 S.Ct., quoting Maguire, Evidence of Guilt, 221 (1959).

In State v. Thomas, 491 S.W.2d 328, 330 (Mo.1973), the Missouri Supreme Court adopted the statement of the Wong Sun court and cited Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920); Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939); People v. Walker, 27 Mich.App. 609, 183 N.W.2d 871, 874 (1970) as cases which made it clear that the doctrine of the fruits of the poisonous tree is inapplicable if the evidence emanated from an independent source, or the causal connection between the primary illegality and the prosecution’s proof became so attenuated as to dissipate the taint.

In Thomas, the court rejected the defendant’s contention that the identification evidence should have been suppressed, even though the defendant’s arrest for homicide was constitutionally defective. Admittedly, Thomas is distinguishable on its facts, since the police did have probable cause to arrest Thomas for armed robbery, the charge for which he was convicted. However, other courts which have considered the question have been virtually unanimous in holding that an illegal arrest does not render inadmissible identification testimony resulting from a subsequent lineup or photographic identification. Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33, 37 (1972); Jones v. State, 5 Md.App. 489, 248 A.2d 166, 169 (1968); Commonwealth v. Davy, 227 Pa.Super. 455, 323 A.2d 148, 149 (1974); State v. Hodgson, 44 N.J. 151, 207 A.2d 542, 545 (1965); People v. Love, 24 Ill.App.3d 477, 321 N.E.2d 419 (1974); Smith v. State, 6 Md.App. 59, 250 A.2d 285, 290 (Md.App.1969); People v. Pettis, 12 Ill.App.3d 123, 298 N.E.2d 372, 375-76 (1973); Johnson v. State, 496 S.W.2d 72, 74 (Tex.Cr.App.1973). See also, LeBlanc v. United States, 391 F.2d 916, 917 (1st Cir. 1968); People v. Shannon, 256 Cal.App.2d 889, 64 Cal.Rptr. 491, 493 (1967); People v. Stoner, 65 Cal.2d 595, 55 Cal.Rptr. 897, 422 P.2d 585, 589-90 (1967). In Commonwealth v. Garvin, supra, the court stated:

“Although we agree with appellant as to the illegality of the arrest we must disagree with his contention that the identifications must be suppressed. No law abiding society could tolerate a presumption that but for the illegal arrest the suspect would never have been required to face his aecusors. Thus, we conclude that the only effect of the illegal arrest was to hasten the inevitable confrontation and not to influence its outcome.” Id. at 37 of 293 A.2d.

In Jones v. State, supra, 248 A.2d at 169, the following statement appears:

“Even if an arrest be illegal, therefore, testimony relating to the identification of the accused at a police lineup, or in a police station, or an identification made at trial is not inadmissible as the fruit of an illegal arrest. [Citations omitted].”

Finally, in Payne v. United States, 111 U.S.App.D.C. 94, 294 F.2d 723, 727 (1961) cert. denied, 368 U.S. 883, 82 S.Ct. 131, 7 L.Ed.2d 83, the court, in rejecting a contention identical to the one raised by the appellant, stated:

“The consequence of accepting appellant’s contention in the present situation would be that Warren [the identifying witness] would be forever precluded from testifying against Payne in court, merely because he had complied with the request of the police that he come to police headquarters and had there identified Payne as the robber. Such a result is unthinkable. The suppression of the testimony of the complaining witness is not the right way to control the conduct of the police, or to advance the administration of justice. The rights of the accused in a case like the present are adequately protected when the complaining witness takes the stand in open court, for examination and cross-examination.” [Citation omitted] Id. at 727 of 294 F.2d.

In any event, it is clear that under the authority of State v. Thomas, supra, the identification testimony was admissible, because the identification by Mrs. Daugherty was not causally connected with the arrest but rather with the robbery itself, and because the identification testimony emanated from a source independent of the arrest, i. e., her recollections and observations at the time of the robbery. Mrs. Daugherty testified that the appellant was in visual proximity with her for at least fifteen minutes under conditions which she described as well-lighted. The defendant stood face-to-face with Mrs. Daugherty on several occasions close enough to take money from her brassiere and close enough to strike her on the head several times with a pistol. Mrs. Daugherty was able to give the police a detailed description of her assailant and was positive about her identification. Under these circumstances, it is clear that her identification testimony had an origin and a basis independent of either the arrest or the lineup and was, therefore, admissible. State v. Wallace, 504 S.W.2d 67, 73 (Mo.1973); State v. Ross, 502 S.W.2d 241, 246 (Mo.1973); State v. Taylor, 496 S.W.2d 822, 824 (Mo.1973).

Finally, the defendant criticizes the lineup itself implying that it was suggestive because the defendant was the only person wearing outdoor clothing. It is, however, clear that Mrs. Daugherty placed no significance on the fact that the defendant was wearing a sweater and stated that at least one other individual in the lineup appeared to be similarly dressed. In this regard, see State v. Britt, 504 S.W.2d 38, 42 (Mo.1973), where the court rejected the argument that a lineup was defective because the defendant was the only person wearing a hat or coat. The court noted that the robbers had not been wearing coats at the time of the offense and that, hence, the difference in dress would have been favorable to the defendant. Likewise, the defendant in the instant case was wearing a black “heavy knit sweater” at the lineup; during the robbery he was wearing a brown coat. See also, State v. Hampton, 509 S.W.2d 139, 141 (Mo.App.1974). Therefore, the court properly admitted into evidence the identification testimony of Mrs. Daugherty. Defendant is entitled to no relief on this point.

Next, we consider defendant’s contention that the court wrongfully refused to suppress the identification testimony of Linda Cope. During the progress of the robbery, Linda, a neighbor of Mrs. Daugherty’s, came into the store. First she was told to lie on the floor; however, when the robber saw that she was pregnant, he told her to sit down on a chair and not to look up. She identified defendant as the person who sat on a tool box just a few feet from her most of the time. To the police she described defendant as a Negro male, 5' 5" or 5' 6" tall, wearing a dark colored coat.

The controversy over Mrs. Cope’s testimony arose because immediately prior to the first trial she was shown two photographs by the prosecutor without notice or the presence of defendant’s attorney. The first photograph was a picture of the lineup. She testified that she was asked if she could pick out any of the robbers, but that no one prompted her or told her whom to select. Nor did anyone tell her whom Mrs. Daugherty had selected. After she made a selection of defendant from the lineup exhibit, she was then shown a single photograph of defendant.

Defendant’s complaint that the photographic display of the two exhibits was invalid because of the absence of counsel. We disagree.

Missouri courts have held that a photographic identification prior to indictment or information is not at a “critical stage” requiring the presence of counsel. State v. Brookins, 468 S.W.2d 42, 47 (Mo.1971); State v. Letourneau, 515 S.W.2d 838, 843 (Mo.App.1974); Steward v. State, 499 S.W.2d 830, 833 (Mo.App.1973). However, the issue of whether or not counsel is required at a post-indictment or information photographic identification remained an open question until United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973). In Ash, the court stated:

“[T]he Sixth Amendment does not grant the right to counsel at photographic displays conducted by the Government for the purpose of allowing a witness to attempt an identification of the offender. ...” Id. at 413 U.S. 321, 93 S.Ct. at 2579.

Although the defendant suggests that this court should follow the example of the Michigan courts and rule that counsel should be appointed at post-information or indictment confrontations, we note that, with the exception of Michigan, no state or federal jurisdiction has reached such a result subsequent to Ash. United States v. Chrisco, 493 F.2d 232, 239 (8th Cir. 1974); Evans v. Janing, 489 F.2d 470, 473 (8th Cir. 1973); United States v. Poole, 161 U.S.App.D.C. 289, 495 F.2d 115, 118 (1974).

United States v. Poole, supra, involved a situation similar to the case at bar. In Poole, the witness attended a lineup but because of nervousness made an erroneous identification. A few weeks later (and shortly before trial) the witness asked for the photograph of the lineup, from which she identified the defendant. The court upheld the identification, notwithstanding the absence of counsel, on the basis of the Ash decision.

Defendant’s reliance upon State v. Wallace, 285 So.2d 796 (La.1973) is misplaced. Wallace does not hold — as the defendant seems to suggest — that counsel must be employed at a post-information or indictment photographic identification. Rather, the reversal in Wallace was based on the suggestive identification procedures utilized by the state at the photographic identification.

No suggestive procedures were present in the instant case. As previously noted, the witness was first shown a photograph at the lineup and selected the defendant without prodding or suggestion from the assistant circuit attorney. She had not been informed that Mrs. Daugherty had selected the defendant from the lineup. Although the defendant contends that Mrs. Cope knew that Mrs. Daugherty had identified the defendant this assertion is grossly misleading. Mrs. Cope testified at trial that she was aware that Mrs. Daugherty had identified the defendant from a lineup, but she did not testify that she was aware at the time she identified the defendant from the photograph that Mrs. Daugherty had selected him from a lineup that Mrs. Daugherty had witnessed.

Thus, since there was no evidence that any improper suggestions were made by the assistant circuit attorney or that the likeness of the defendant in the lineup photograph was unduly emphasized, the court committed no error in denying the defendant’s motion to suppress. State v. Johnigan, 494 S.W.2d 23, 24 (Mo.1973); State v. Balle, 442 S.W.2d 35, 39 (Mo.1969) and State v. Gay, 523 S.W.2d 138 (Mo.App.1975).

Finally, we have considered claim of error as to the court’s refusal of certain proffered instructions, and have found them to be without merit. First, defendant failed to set out the instructions in the argument portion of his brief as required by Rule 84.04(e), V.A.M.R.; hence, the point is not preserved for review. State v. Larkins, 518 S.W.2d 131, 135 (Mo.App.1974); State v. Mesmer, 501 S.W.2d 192, 197 (Mo.App.1973). And secondly, each of the proffered instructions was a cautionary instruction, and to give or refuse to give any of the instructions offered rested in the sound discretion of the court. State v. Collor, 502 S.W.2d 258, 259 (Mo.1973) and State v. Taylor, 472 S.W.2d 395, 401-402 (Mo.1971).

Judgment affirmed.

SIMEONE, P. J., and GUNN, J., concur.


author: WEIER, Presiding Judge.

text:
    Kevin M. CHAPMAN, Adm. of Estate of James E. Chapman, Plaintiff-Appellant, v. James L. SANDERS et al., Defendants-Respondents.
    No. 36153.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 29, 1975.
    Motion for Rehearing or Transfer Denied Sept. 8, 1975.
    Application to Transfer Denied Nov. 10, 1975.

      Kappel, Neill, Staed & Wolff, St. Louis, for plaintiff-appellant.
    Jack L. Koehr, City Counselor, Eugene P. Freeman, Assoc. City Counselor, St. Louis, for defendants-respondents.
   WEIER, Presiding Judge.

This case arises on appeal from a judgment by the Circuit Court of St. Louis, affirming a decision of the Board of Trustees of The Alternate Police Retirement System of St. Louis, which denied plaintiff’s application for accidental disability retirement (§ 86.263, RSMo. 1969). We find the circuit court’s judgment free of error.

Plaintiff, James E. Chapman, was a member of the St. Louis Police Department from 1932 until 1971. During his thirty-eight and one-half years of service, the plaintiff incurred back and neck injuries of varying degrees of severity. The injuries stemmed from a myriad of incidents, including on and off duty automobile accidents and falls suffered in the performance of police duties. In February of 1970, surgery was performed in an effort to correct plaintiff’s disabling physical condition of osteoarthritis, which, in the opinion of his doctors, had been aggravated by plaintiff’s many accidents throughout the years. The operation, however, left the plaintiff extensively paralyzed, described as acute quadriplegia.

Plaintiff applied for accidental disability retirement on March 11, 1971. While the accidental disability application was still pending, plaintiff applied for and was granted regular service retirement on June 1,1971. On April 21,1972 a hearing on the accidental disability application was held in which the plaintiff testified and the parties stipulated to the introduction of his entire medical history by documentary evidence. Also included by stipulation were official police reports of eight instances of accidents involving injuries to the plaintiff, the first occurring in 1940 and the most recent injury taking place in 1967. The doctors who examined the plaintiff agreed his numerous injuries aggravated his osteoarthritis to the disabling stage. The Board determined that none of the accidents subsequent to 1955 could have medically resulted in plaintiff’s total and permanent incapacity, and thus plaintiff’s application for service connected accidental disability retirement was filed beyond the permissible time under § 86.263, RSMo. 1969. Plaintiff petitioned the circuit court for a review of the Board’s decision. On this review he suffered an adverse judgment.

Although the circuit court upheld the Board’s decision in denying plaintiff’s application, the court arrived at the same result for different reasons. The court found plaintiff’s disabling condition was brought about as a result of his many traumatic episodes over an extended period of time aggravating the underlying condition of arthritis. The court construed the term “accident”, as used in § 86.263, as not including a series of “many traumatic events”, thus not extending the section’s coverage to the plaintiff.

Plaintiff asserts this variance between the Board’s basis for decision and that of the court’s constitutes error. We disagree. It may be said without question that the scope of judicial review of decisions of administrative agencies is generally limited to a determination of whether the decision is supported by “competent and substantial evidence upon the whole record”. § 536.140(2), RSMo. 1969. However, if there is no factual question involved, but rather a question of law or application of the law to the facts, the court may proceed to determine the matter by applying the law in light of the facts. Stephen & Stephen Properties, Inc. v. State Tax Commission, 499 S.W.2d 798, 802[1] (Mo.1973).

Since there is no dispute on the occurrences of the duty-connected accidents themselves, nor on the medical evidence relating to plaintiff’s need for the surgery and his total incapacitating physical condition subsequent to the 1970 operation, the only issue on this appeal is whether the' circuit court correctly interpreted the applicable statute. § 86.263 provides:

“Upon application by the member or the board of police commissioners any member who has become totally and permanently incapacitated for duty as the natural and proximate result of an accident occurring while in the actual performance of duty at some definite time and place through no negligence on his part, and if such accident occurred not more than five years prior to date of application unless the accident was reported and an examination made of the member by the medical staff of the board of police commissioners within five years of the date of the accident with subsequent examinations made as requested, shall be retired by the board of trustees provided that the medical board shall certify that such member is mentally or physically incapacitated for further performance of duty, that such incapacity is likely to be permanent and that such member should be retired; provided that if the accident occurred prior to the age and year set out in section 86.250, application for benefits must be made before such date except that the interval between date of accident and of application may be at least six months.”

Essentially the section can be broken into five necessary elements that must be demonstrated before one is entitled to service connected accidental disability benefits: (1) a total and permanent incapacitation for duty caused by an accident, (2) the disabling accident occurred in the actual performance of duty, (3) the accident occurred at some definite time and place without contributory negligence, (4) the accident occurred within the five years prior to the application for benefits, and (5) the application was filed prior to the applicant’s reaching retirement age according to § 86.250 if the accident occurred prior to retirement age.

Whether or not the plaintiff met the statutory requisites thus turns on the meaning of the term “accident”. Plaintiff contends it should be construed broadly to include many accidents acting cumulatively as a process rather than a single event. Plaintiffs brief cites several authorities for such an expansive interpretation, but all arose either in a different context or under a different statute.

Admittedly there is little Missouri authority upon which to base an interpretation of “accident” as used in this particular statute. However, we must consider the entire statute with all of its sections in pari materia and in light of the objects and purposes of the legislature. In re Estate of Hough, 457 S.W.2d 687, 691[10] (Mo.1970); Becker v. St. Francois County, 421 S.W.2d 779, 783[10] (Mo.1967).

The “Alternate Retirement System in Cities of 700,000 or More” (§§ 86.-200-86.363, RSMo 1969), read in its entirety, demonstrates the legislative intent to establish retirement security for policemen. But in addition, it specifically confined the awards to those individuals meeting the proscribed requirements of number of years of service and age. The retirement scheme devised by the legislature also differentiates between types of retirement available; normal service retirement, § 86.250; retirement disability (which does not need to be service connected), § 86.257; and service connected accidental disability retirement, § 86.263. Such a comprehensive scheme of coverage demonstrates the reasonableness of an inference that the legislative intent was that each element of § 86.263 should be precisely met before an individual is eligible for that particular type of retirement.

Plaintiff, however, urges that pension statutes are to be liberally construed, and thus contends a narrow definition of “accident” would be unjust. The rule of liberal construction only operates to resolve an ambiguity within a statute and not to create one. State ex rel. Sei v. Haid, 332 Mo. 1061, 61 S.W.2d 950, 954[5] (1933). When the language of the statute is unambiguous and conveys a plain and definite meaning, “the courts have no business foraging among such rules to look for or impose another meaning.” DePoortere v. Commercial Credit Corporation, 500 S.W.2d 724, 727[1, 2] (Mo.App.1973); Consolidated School District No. 1 of Jackson County v. Bond, 500 S.W.2d 18, 21[1, 3] (Mo.App.1973).

The very wording of § 86.263 indicates a narrow definition was intended,— “an accident * * * at some definite time and place * * *.” To illuminate by way of contrast, the firemen’s accidental disability pension statute has been amended, deleting this restrictive phrase, “at some definite time and place”, to allow an expanded coverage of the term “accident”. See: McCarthy v. Board of Trustees of the Firemen’s Retirement System of St. Louis, 462 S.W.2d 827, 830 (Mo.App.1970); § 87.-200, RSMo. 1969 (Historical Note V.A.M.S.). The fact that the legislature did not similarly change the policemen’s pension statute is persuasive here with respect to the legislature’s intent.

The circuit court’s narrow construction of the term “accident”, though operating to exclude plaintiff from coming within the purview of § 86.263, is the logical and correct one.

The judgment is affirmed.

SMITH, C. J., and RENDLEN, J., concur.

      . Due to the death of James E. Chapman on February 25, 1975, while this action was pending, Kevin M. Chapman, as administrator of James E. Chapman’s estate was substituted as plaintiff pursuant to Rule 52.-12(c).

      . The service retirement allowance granted plaintiff was $886.48 per month. The accidental disability allowance, if granted, would amount to $941.72 monthly in addition to payment for continuing service connected medical expenses. The regular service retirement does not include any direct medical benefits.


author: KELLY, Judge.

text:
    Lester FULTON, Respondent, v. INTERNATIONAL TELEPHONE & TELEGRAPH CORP., Appellant.
    Nos. 36090, 36091.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Aug. 5, 1975.
    Motion for Rehearing or Transfer to Court En Banc or to Supreme Court Denied Sept. 8, 1975.
    Application to Transfer Denied Nov. 10, 1975.

      Lewis, Rice, Tucker, Allen & Chubb, James W. Herron, St. Louis, for appellant.
    Aubuchon & Lavin, Ross G. Lavin, St. Louis, for respondent.
   KELLY, Judge.

These are consolidated appeals; that in Cause No. 36090 from the granting of a special order allowing the appellant (hereinafter the defendant) to file a notice of appeal out of time, Rule 81.07, from a default judgment entered in the Circuit Court of the City of St. Louis on September 28, 1973, and that in Cause No. 36091 from an order of the same court denying defendant’s First Amended Motion to Set Aside Judgment And to Quash Execution And Petition For Review. Respondent (hereinafter the plaintiff) filed in this court a Motion To Dismiss the Appeal in Cause No. 36090, on the grounds that the defendant does not satisfy the criteria for the granting of the special order. Plaintiff’s Motion to Dismiss has been taken with the case. For reasons hereinafter set out, we sustain plaintiff’s Motion to Dismiss defendant’s appeal from the default judgment, entered on September 28,1973, in the Circuit Court of the City of St. Louis and we further affirm the trial court’s denial of defendant’s Motion to Set Aside Judgment, Quash Execution and Petition for Review.

Plaintiff filed his petition seeking damages for violation of the Service Letter Statute, § 290.140 RSMo 1969, on the 14th day of March, 1973. Count I of plaintiff’s petition prayed for actual damages of $21,-000.00; Count II, punitive damages of $100,000.00. Personal service was had on C.T. Corporation System, 314 North Broadway, St. Louis, Missouri, the registered agent of the defendant, by serving a copy of the petition and a summons on E. G. Farrelley, Secretary of the C.T. Corporation System on March 16, 1973. No appearance having been entered on behalf of the defendant, and no motions or answer having been filed, plaintiff on June 12, 1973, upon request, was granted a default and inquiry, and the cause was set for hearing on June 28, 1973. On June 28, 1973, defendant still being in default, inquiry was conducted and at the request of the trial court a memorandum was filed and the cause was taken under submission. On September 28, 1973, judgment was entered in behalf of plaintiff in the amount of $21,000.00 on Count I of his petition and $75,000.00 on Count II of his petition.

On November 14, 1973, an entry of appearance was made by a St. Louis law firm in the trial court and at said time a Motion to Set Aside Judgment, Quash Execution and Petition for Review was filed. The following day, November 15, 1973, counsel for the defendant filed a Motion to Stay Execution and plaintiff’s counsel was noticed to appear in the trial court on November 20, 1973, to take up defendant’s Motion to Stay Execution. On said date, November 20, 1973, defendant’s Motion to Stay Execution was taken up and submitted. On December 5, 1973, verification of the Motion to Stay Execution was filed and an indemnity bond in the amount of $115,-000.00 with surety was presented and approved. The trial court on said date entered an order staying execution of the judgment, and called up defendant’s Motion to Set Aside the Judgment and Petition for Review and heard arguments thereon. Defendant filed an affidavit for continuance and the Motion was reset for December 19th, 1973. On December 19,1973, the Motion was continued to December 20, 1973, and the defendant filed its First Amended Motion to Set Aside Judgment And To Quash Execution And Petition For Review. On February 6, 1974, plaintiff filed his Answer to defendant’s First Amended Motion to Set Aside Judgment And To Quash Execution And Petition For Review. On February 7, 1974, defendant’s First Amended Motion to Set Aside Judgment And To Quash Execution and Petition For Review was heard and submitted and each party granted time until February 14,1974, to file briefs. On February 20, 1974, the trial court entered its order denying defendant’s Motion to Set Aside Judgment, And To Quash Execution And Petition For Review. On March, 1, 1974, defendant filed its Notice of Appeal to the Supreme Court “from the appealable order entered in this action on the 20th day of February, 1974” and ten days later followed with a Motion for A Special Order to File a Notice of Appeal Out of Time pursuant to Rule 81.07 from the “judgment entered September 28, 1973” also in the Supreme Court. On March 18, 1974, the Supreme Court, on its own motion, transferred both the direct appeal from the default judgment of September 28, 1973, and the appeal from the order denying the defendant’s Motion to this court on the grounds that jurisdiction in both was vested in the Missouri Court of Appeals, St. Louis District. On March 21, 1974, upon receipt of the two files from the Supreme Court, this court, inadvisedly we conclude, sustained defendant’s Motion For a Special Order to File a Notice of Appeal Out of Time pursuant to the provisions of Rule 81.07.

We have concluded that the order permitting the defendant to file its notice of appeal out of time was improvidently granted, should now be set aside and held for naught, and defendant’s appeal from the default judgment of September 28, 1973, be dismissed. We have reached this conclusion because we believe that the granting of the Order for the filing of a Notice of Appeal out of time under the facts of this particular case is at odds with the principle that the trial court should be initially afforded the opportunity to have called to its attention and to correct alleged errors committed by itself before an appellate court attempts a review thereof. The trial court in this case was afforded this opportunity by defendant’s motions, held a hearing thereon, and thereafter entered an appealable order denying the relief sought by the defendant and from which the defendant has also perfected an appeal in this court in Cause No. 36091. Both appeals raise essentially the same Points Relied On for reversal of the trial court’s judgments, and it would be a squandering of judicial time and effort to review the same grounds in two separate appeals.

For these reasons we sustain plaintiff’s motion to dismiss defendant’s direct appeal from the default judgment of September 28, 1973, and set aside and hold for naught the order of this court granting said appeal out of time as having been improvidently granted.

Moving now the defendant’s appeal from the order of the trial court of February 20, 1974, denying defendant’s motion to set aside the default judgment and petition for review — Cause No. 36091. It is necessary to set out in some detail the almost incomprehensible procrastination practiced by house counsel for the defendant once he received a copy of the summons and petition served on defendant’s registered agent sometime between March 20, 1973, and March 26,1973, and the date of the entry of the default judgment on September 28, 1973.

Despite the fact he was notified by plaintiff’s counsel by letter of June 5, 1973, that unless an entry of appearance or pleading were filed within one week of June 5, 1973, plaintiff would have no recourse but to take a default, no communication was forthcoming from defendant’s house counsel until June 29, 1973 — the day after the inquiry hearing — when he advised plaintiff’s counsel that he had called his office that day and was told that he was out of town and that he, defendant’s house counsel, would be on vacation between July 2, and 6, but that he wanted to discuss the matter upon his return to his office on July 9, and if they could not reach an agreement he had “plans to retain” local counsel. An associate of plaintiff’s counsel responded to this letter on July 2, 1973, and advised defendant’s house counsel that he was now handling the cause, acknowledged receipt of the letter of June 29th and asked that defendant’s house counsel call him when he had returned to his office.

On September 26, 1973, the trial judge mailed to the defendant’s house counsel— who had not entered his appearance nor hired local counsel to do so by that time — a copy of a proposed memorandum for the clerk of the court which reads as follows:

“Cause called. Plaintiff appears. Although called thrice, defendant appears not and remains in default. Upon testimony and evidence previously heard and adduced the Court will rule as follows on September 28, 1973:
Judgment and finding of Court in favor of Plaintiff on Count I in the sum of $21,000.00 and costs.
Judgment and finding of Court in favor of Plaintiff on Count II in the sum of $75,000.00 as punitive damages.” (Emphasis supplied).

On September 28, 1973, the default judgment was entered in accordance with memorandum aforesaid. The copy of the proposed memorandum was received by defendant’s house counsel on October 1, 1973, the Monday following the judgment entry of September 28, 1973, a Friday.

Following receipt of the court memorandum on October 1, 1973, defendant’s house counsel took no action so far as plaintiff’s counsel was aware until November 9, 1973, when he was advised by a telegram initiated to him by plaintiff’s counsel that execution had been ordered on the judgment. This elicited a long distance telephone call from defendant’s house counsel to plaintiff’s counsel during which defendant’s house counsel admitted his dereliction and pled for some time to see what he could do to alleviate the situation in which he found himself. Plaintiff’s counsel agreed not to levy execution that date but requested defendant’s house counsel to “get back to him” later that same day. House counsel did not “get back to” plaintiff’s counsel and the next activity in the case was the entry of appearance of present counsel for the defendant on November 14, 1974, and the filing of defendant’s Motion to Set Aside Judgment And To Quash Execution And Petition For Review.

A motion to set aside a default judgment is in the nature of an independent proceeding and a direct attack on the judgment. The name given the proceeding is unimportant, but in order to prevail on a motion to set aside a default judgment, the moving party must allege and prove that there was good reason for the default. Counsel’s negligence in permitting the entry of a judgment by default is, in the absence of fraud or collusion, imputable to the client and the client is not entitled to relief. Askew v. Brown, 450 S.W.2d 446, 450[2-5] (Mo.App.1970). The motion is one which appeals to the sound discretion of the trial court and the Court of Appeals will not interfere with the trial court’s action unless the record clearly demonstrates that there was an abuse of discretion and judgment on the motion was clearly erroneous. Ward v. Cook United, Inc., 521 S.W.2d 461, 470[10] (Mo.App.1975).

While defendant does not allege fraud or collusion in the procurement of the judgment, reference is made to what it contends was a concealment of facts from the trial court which would have precluded the entry of judgment had the trial court known of their existence. These alleged facts may be divided into two categories: (1) that his testimony at the hearing for the assessment of damages was untruthful and perjurious and (2) that he thereby concealed from the trial court that defendant actually was the source of his subsequent employment so that there was an absence of actual malice, spite, ill will, wantonness and maliciousness which was necessary to support an award of punitive damages. This contention is based upon testimony offered at the evidentiary hearing by the defendant. However, such evidence was merely in conflict with that of the plaintiff at the hearing to assess damages and is not the fraud referred to in the cases ruling on motions of this kind. False testimony or perjury ordinarily is not ground for vitiating a judgment. The fraud that vitiates a judgment is fraud which goes to its procurement, not fraud relating to the merits of the action. Head v. Ken Bender Buick Pontiac Inc., 452 S.W.2d 596, 598[6] (Mo.App.1970).

We do not reach the question whether defendant presented sufficient evidence to establish that it had a meritorious defense to plaintiff’s claim; the mere existence of a defense to the original action alone is ordinarily not a ground for vacating the judgment. Rubbelke v. Aebli, 340 S.W.2d 747, 751[3] (Mo.1960).

We have concluded that the trial court did not abuse its discretion in denying defendant’s Motion to Set Aside, Quash Execution and Petition For Review and therefore affirm.

The judgment of the trial court is affirmed.

CLEMENS, P. J., and STEWART, J., concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    Gerald Wayne TODD, Respondent, v. Winfred GOOSTREE, d/b/a Goostree Hauling Company and United States Fidelity & Guaranty Company, Appellants.
    No. 27501.
    Missouri Court of Appeals, Kansas City District.
    Sept. 2, 1975.
    Motion for Rehearing and/or Transfer Denied Oct. 6, 1975.
    Application to Transfer Denied Nov. 10, 1975.

      Gordon N. Myerson, Kansas City, for appellants; Laurence R. Tucker, Morris, Mitchell, Larson, King, Stamper & Bold, Kansas City, of counsel.
    James S. Formby, Robert E. Stewart, Kansas City, for respondent.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Appeal from entry of judgment on workmen’s compensation award, pursuant to § 287.500, RSMo 1969.

In the case of Todd v. Goostree et al., 493 S.W.2d 411 (Mo.App.1973), this court reversed the judgment of the Circuit Court of Lafayette County, which had affirmed a denial of workmen’s compensation benefits to Gerald Wayne Todd. The cause was ordered remanded to the Industrial Commission for further proceedings consistent with the opinion.

Before the Industrial Commission acted upon the remand, the employer and its insurer filed a “Motion for Further Determination and for Evidence,” requesting the Commission to make a determination of whether the claimant had sustained an accident arising out of and in the course of his employment and also an evidentiary hearing before the Division of Workmen’s Compensation on the issue of the nature and extent of claimant’s disability.

On July 12, 1973, the Industrial Commission issued its “Final Award Allowing Compensation Pursuant to Remand from Missouri Court of Appeals Kansas City District.” Omitting caption and signatures, the Commission’s order read:

“The above entitled workmen’s compensation case was submitted to the Industrial Commission of Missouri for review as provided by Section 287.480, Revised Statutes of Missouri, 1969.

“The referee, after hearing, issued his award denying compensation on June 12, 1968, and found as follows:

T find and believe from all the credible evidence that Claimant herein did not sustain an accident as provided in Section 287.-020(2) or injury to the physical structure of his body as provided in Section 287.020(3) Revised Statutes of Missouri, and therefore compensation must be denied and is hereby denied.’

“On July 3, 1969, the Commission, one member dissenting, after having reviewed the evidence and considered the whole record, affirmed the award of the referee of June 12, 1969, in favor of the employer and insurer and against the employee and awarded no compensation.

“Thereafter, the final award of the Industrial Commission was challenged by the employee in the Circuit Court for the County of Lafayette (No. 10009) which affirmed the award of the Industrial Commission on June 29, 1970.

“Subsequently the judgment of the circuit court was appealed to the Kansas City Court of Appeals (No. 25,576) which court, now the Missouri Court of Appeals, Kansas City District, on January 19, 1973, found that the employee’s crippling neurosis precipitated by emotional shock was harm to the physical structure of his body, and therefore an injury within the definition of Section 287.020(3) RSMo 1959. The court reversed the judgment and remanded the cause to the circuit court with directions that it be remanded to the Industrial Commission for further proceedings consistent with its opinion, which was done.

“The court in its opinion gave the following account of the incident which resulted in employee’s injury:

‘The facts in evidence are not in dispute, either as to the occurrence or its results. On September 14, 1966, the claimant was employed by respondent Goostree (sic) Hauling Company as the driver of a tandem dump truck and, in the course of his employment, was hauling rock from a quarry. Just prior to the tragic incident, claimant had driven the truck into the quarry and was waiting his turn to be loaded from a Hyloader, which was then occupied with a truck operated by a fellow employee named Swift, known familiarly to the claimant as “Reverend Swift.” At a signal from the Hyloader operator, claimant backed his truck under the Hyloader and stopped. The Hyloader operator first started his machine, then turned the motor down, got off the machine, walked toward the claimant’s truck and looked under it. The claimant assumed something was wrong with his truck, got down and walked around it, following the Hyloader man. When he reached the rear of the truck, the claimant was confronted with the sight of Swift’s dead body under the rear axle. In claimant’s words: “I seen the man sticking out from under the truck ... I walked up there, I could see him, and I’d see his head and everything was all mashed, and . (t)he rear axle . . . (i)t was on his head and chest ... I seen the man; I just . . . went in shock, and . I just . . . how in the world did anything like that could happen; and I just . . . felt so awful that I just went to crying and went over and set on a rock; and I waited until my dad come up there, and they asked me if I’d move the truck, and I told them I didn’t want to drive the truck no more.”

‘Confronted by this grisly scene, claimant immediately manifested severe emotional shock. He cried uncontrollably and shook so violently he could hardly sit still.

‘Claimant remained at the quarry the rest of the evening, until his father came and took him home. He continued to cry until he passed off to sleep. He continued to tremble and shake throughout the rest of the day. That night he was unable to sleep at all because his mind was obsessed with the tragedy.’

“We believe that the entire episode so vividly described by the court, beginning with the signal to back the truck under his control and ending with the stark and indelible realization of the irremediable result he had just unwittingly brought about, when considered as a rapid chain of events, clearly constitutes an accident under the terms and provisions of the Missouri Workmen’s Compensation Act. The whole event was certainly ‘unexpected or unforeseen’ and there can be no serious question but that it happened ‘suddenly and violently’ and produced at the time, as the court has ruled, ‘objective symptoms of an injury.’ Section 287.020(2) Revised Statutes of Missouri, 1969. Accordingly, finding that the employee suffered an injury by accident arising out of and in the course of his employment, compensation must be and is, hereby allowed.

“The Commission finds that the claimant’s average weekly wage was from $125 to $150 per week; that the employer had actual notice of the accident and that the claim was filed within the time prescribed by law. Based on the testimony of Alfred Owre, M. D., the Commission finds that as a result of the accident the claimant suffered 75% permanent partial disability to the body as a whole.

“Therefore, the Commission awards compensation for said accident in favor of the employee and against said employer and insurer as provided in the Missouri Workmen’s Compensation Law, as follows:

“For a Healing Period _ the sum of_$52.00 per week for 30 weeks

“For Permanent Partial Disability _the sum of_ 47.00 per week for 300 weeks

“Said payments to begin September 15, 1966 and to be payable and be subject to modification and review as provided in said Law.

“The employer and insurer shall provide employee with such medical, surgical, hospital and nursing care and treatment as may be reasonably necessary to cure and relieve the employee from the effects of his injuries.

“This award is subject to a lien in an amount equal to 25% thereof in favor of James S. Formby, Robert E. Stewart and Richard Bell, Attorneys, for legal services rendered. Any past due compensation shall bear interest at the rate of six per cent per annum from date due until paid as provided by Section 287.160 Revised Statutes of Missouri, 1969.

“ON THE MOTION PENDING

“Finding that there is ample competent and substantial medical evidence in the record related to employee’s physical impairment, the motion of the employer and insurer to remand the case to the Division of Workmen’s Compensation for further evidence on the issue of employee’s nature and extent of disability is hereby denied.”

On July 30, 1973, the employer-insurer filed its “Application For Review and Change of Award.” By paragraph 1, the movant made “application to the Commission pursuant to R.S.Mo.287.470 requesting that said award be changed, modified and reviewed so that petitioner can show that the employee’s mental disability complained of took a great change for the better if not disappeared entirely during the 300 week payment period awarded.” Paragraph 2 sought a change in the 30 week healing period on the ground that under the law at the time of the accident, the period of healing allowable was 20 weeks.

Insofar as the record in this case shows, the Industrial Commission did not act on the application.

On August 8, 1973, the employer-insurer filed with the Industrial Commission a notice of appeal to the circuit court from the order of July 12, 1973.

On January 16,1974, the employee filed a motion in the circuit court to dismiss the appeal on the grounds that the award was not an appealable order. On January 17, 1974, the court took up and sustained the motion and remanded the cause to the Industrial Commission.

On February 4, 1974, the employee filed his motion for judgment on the award, pursuant to § 287.500. The employer-insurer filed suggestions in opposition to such motion, pointing out that the employee had contended in his motion to dismiss the appeal that the order from which they attempted to appeal was not final, but that the motion for judgment was necessarily premised on the order being a final order. The employer-insurer suggested that the court should either dismiss their appeal and remand the case to the Commission and not allow judgment to be entered under § 287.-500, or should allow their appeal to stand.

On July 15, 1974, the court took up the employee’s motion for judgment and sustained it, adopting the language of the Commission’s award. The employer-insurer took this appeal.

The judgment appealed from was entered under § 287.500, RSMo 1969, which provides:

“Any party in interest may file in the circuit court of the county in which the accident occurred, a certified copy of a memorandum of agreement approved by the division or by the commission or of an order or decision of the division or the commission, or of an award of the division or of the commission from which an application for review or from which an appeal has not been taken, whereupon said court shall render judgment in accordance therewith and notify the parties. Such judgment shall have the same effect and all proceedings in relation thereto shall thereafter be the same as though said judgment were a final judgment which had been rendered in a suit duly heard and determined by said court. Any such judgment of said circuit court unappealed from or affirmed on appeal or modified in obedience to the mandate of the appellate court, whenever modified on account of a changed condition under section 287.470, shall be modified to conform to any decision of the commission, ending, diminishing or increasing any weekly payment under the provisions of section 287.470 upon the presentation to it of a certified copy of such decision.”

Appellants contend that the trial court had no authority to act under that statute because:

“A. Appellants had filed an Application for Review and a Notice of Appeal from the award of the Industrial Commission, and;

“B. Alternatively, there was no valid final enforceable award by the Industrial Commission in existence at the time the trial court entered judgment under § 287.-500 R.S.Mo.1969.”

Appellants did file an appeal from the order of the Industrial Commission. However, that appeal was dismissed and no appeal was pending at the time of the filing of respondent’s motion for judgment and the entry of judgment thereon. Appellants took no action to preserve their appeal by any post-judgment motion. The respondent’s motion for judgment was filed before the 30-day period required for finality of the judgment (Rule 75.01) had expired, so that appellants must have been award of the advantage which the respondent intended to take of the dismissal of the appeal, yet the appellants undertook no action to uphold their appeal from the Commission, by appeal of the trial court’s judgment or otherwise.

Appellants argue that the trial court’s dismissal of their appeal was erroneous and that this court should, as one alternative, remand the case to the circuit court for a hearing of their appeal on its merits. However, since appellants took no timely action to preserve their appeal, that relief is not available and this court is not required to pass upon the merits of the trial court’s action in dismissing the appeal.

Appellants did file what they denominated an “Application for Review” with the Commission. However, considering § 287-500 in the light of § 287.480, it is clear that the application for review contemplated by § 287.500 is the application for review, under § 287.480, by the Industrial Commission of an award of the Workmen’s Compensation Division, made under § 287.460.

The so-called application for review in this case was actually an application for change in award because of changed conditions, under § 287.470. § 287.500, above quoted, expressly contemplates that any judgment entered under it is subject to modification pursuant to an order under § 287.470, which reinforces the conclusion that the application for review which precludes a judgment on an award is an application under § 287.480, and no such application was pending in this case.

Appellants’ contention that no judgment could be taken on the Commission’s order because they had filed an appeal and application for review is rejected.

The alternative contention of appellants that the order of the Commission was not a final order is premised on the proposition that all issues between the parties had not been disposed of. By its terms, the Commission clearly intended the order to adjudicate the right of the claimant to compensation benefits. Appellants do not state what issues they claim remain to be resolved between the parties. As above pointed out, any application for modification because of changed conditions would not preclude the application of § 287.500. Appellants strenuously resist the suggestion of respondent that the award of the Commission is a temporary or partial one, subject, under § 287.510, to the penalty of being doubled for noncompliance. Their argument on that score is more convincing than their argument that the order was not a final order. In any event, the imposition of the sanction of § 287.510 is not properly a matter for original consideration in this court.

The Commission obviously considered the order a final one and appellants have not demonstrated why it should be considered otherwise. No basis for the reversal on this ground of the trial court’s judgment has been shown.

On oral argument counsel for respondent acknowledged that under the law in effect at the time of the accident here involved, the maximum healing period was 20 weeks rather than the 30 weeks allowed by the Commission. (The 20-week healing period, provided by § 287.190, RSMo 1965 Supp., was extended to 30 weeks by a 1967 amendment (Laws of Mo.1967, pp. 384, 386), which became effective October 13, 1967.) The judgment should be modified in that regard and as modified will be affirmed.

Respondent’s motion, taken with the case, to dismiss the appeal, for damages and penalties for pursuing a frivolous appeal, and for remand of the case to the Lafayette County Circuit Court for entry of judgment, doubling the amount of the award, is overruled.

Judgment modified, and, as modified, affirmed.

All concur.