author: BERREY, Judge.

text:
    Greydon Wesley NEDBLAKE, Petitioner/Respondent, v. Orchid Lee NEDBLAKE, Respondent/Appellant.
    No. WD 34517.
    Missouri Court of Appeals, Western District.
    Dec. 11, 1984.

      Robert C. Paden, Independence, for respondent-appellant.
    Michael H. Maher, Kansas City, for petitioner-respondent.
    Before KENNEDY, P.J., and NUGENT and BERREY, JJ.
   BERREY, Judge.

Orchid Lee Nedblake (wife) and Greydon Wesley Nedblake (husband) were married on July 10, 1979, and the marriage was dissolved on December 10, 1982, following a final separation which began on September 1,1981. Both parties concede the marriage was “rocky” and they separated numerous times during the two years. The wife appeals the trial court’s distribution of property upon dissolution. Setting forth the complaints each had against the other would serve no purpose in this case. The judgment is affirmed as modified.

On their wedding day, the couple entered into an “Antenuptual Agreement” which set out the properties owned by each before the marriage. The wife owned four houses in Kansas City, Missouri, which she subsequently sold, and certain tangible personal property. The husband held a “substantial ownership interest” in Package Service Company, Inc., and an assortment of realties. The agreement provided that upon dissolution, the parties would “take her or his property and half of any property acquired by them subsequent to such marriage in lieu of” any alimony or maintenance claim. (Emphasis added.)

The wife challenges the dissolution decree by first contending that the trial judge misapplied the law regarding antenuptial agreements by awarding to the husband marital property valued at $715,553 and awarding to her marital property valued at $29,407. Second, and in the alternative, she contends that after considering the factors set forth in § 452.330.1, RSMo the court erroneously awarded her substantially less property than her husband.

The wife is not alleging that the agreement itself is invalid but she is alleging that the court did not abide by its terms and order an equal division of all marital property. Due to the parties conceding the validity of the agreement, a discussion of the second contention is unnecessary. Antenuptial agreements will be upheld and will dispose of the issues of division unless found to be unconscionable. Ferry v. Ferry, 586 S.W.2d 782 (Mo.App.1979).

The tenor of this case is best illustrated by setting forth both parties’ impressions of the court’s well drawn and exhaustive decree. The wife alleges that the following schedule is a correct representation of the court’s distribution of the marital assets.

Husband Wife
$ 6,896 $ 7,157 a) Household furnishings and personal belongings
22,250 5,750 b) Ford Mustang automobiles
37,500 16,500 c) Real property
648,907 -0-d) Stock in Package Service Company
Total $715,553 $29,407

Note that in the husband’s schedule concerning marital assets, he does not include the interest in the Package Service Company. Nor does he recognize the award for automobiles. Also, there is a difference of opinion as to how the “Jeff Nedblake loan” affects the real property figures.

Husband Wife
a) Household furnishings and personal property $ 7,126 $ 7,157
b) Automobiles —0— 750
c) Cash in lieu of accounting for auto disposed of -0-5,000
d) Marital home 10,500 10,500
e) 8233 N. Oak (4,000 marital equity) 2,000 2,000
f) Gladstone acreage (no net marital interest) —0— -0-
g) Jeff Nedblake loan (wife’s interest) -0-4.000
Total $ 19,626 $29,407

It is readily apparent that the most highly contested aspect of the court’s decree is the setting aside to the husband the forty-one percent interest, worth, according to the trial court, $648,907 in Package Service Company, Inc., acquired during the marriage, as his sole and separate property. The events leading to the acquisition of the interest are set forth as follows.

Package Service Company, Inc., is a corporation which was formed in 1939 by the husband’s father, mother, and another family, and has been solely operated by the husband’s family since 1950. At the time of the marriage the husband held a twenty-nine percent interest in the corporation and had served as president for six to eight years.

On January 18, 1981, approximately eight months before the parties’ final separation, he acquired an additional forty-one percent interest in the corporation from his mother and stepfather by agreeing to pay $100,000 to his mother and $66,000 to his stepfather. His son, Jeff Nedblake, acquired stock in the same manner. The transaction occurred strictly between the husband, his son, his mother and his stepfather. For the first five years he was to pay only the interest of $1,200 per month.

The wife contends the agreement clearly mandates an equal division of all property acquired during the marriage, regardless of which party acquired the property, and because the trial court designated the forty-one per cent interest in the corporation as marital, it had no option but to divide the interest equally. It is true that the court initially referred to the interest as marital by stating, “The Court finds that the Respondent made no contribution to the acquisition of this marital property ....” (Emphasis added.) However, it continued in stating, “The Court also notes that the Antenuptial Agreement ... indicates that the Petitioner had a ‘substantial ownership interest’ in Package Service Company, Inc., and the Court finds that any interest in the corporation acquired by the petitioner subsequent to the marriage is excluded by valid agreement of the parties.” It is apparent the trial court did not look upon the agreement as being clear and unequivocal, nor does this court. Under § 452.330.2, RSMo Supp.1984, a finding that property is excluded by valid agreement renders the property separate by rebutting the presumption that property acquired by either party after the marriage is marital property.

Consequently the question for this court is not whether the trial court misapplied the law regarding antenuptial agreements, but rather, was the trial court’s finding of separate property supported by substantial evidence and by the weight of the evidence. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The wife argues that the trial court’s basis for excluding the property is beyond reason, in that the “substantial ownership interest” referred to in the agreement encompassed only the pre-marital interest. The trial court did not explain its ruling that the corporate interest was excluded by valid agreement. But, “the primary concern on appeal is the correctness of the result reached by the trial court and not the route by which it was reached,” Maryland Plaza Redevelopment v. Greenberg, 594 S.W.2d 284, 286 (Mo.App.1979), and there is ample evidence to support a finding that the corporate interest was not acquired by them, the husband and wife, but by the husband alone and therefore properly excluded under the terms of the antenuptial agreement.

The wife did not contribute any funds to the acquisition of the stock, she did not execute any notes for the purchase of the stock, she was not a party to the transfer agreement, nor was she issued any shares of stock. She testified that she did not consider the stock acquisition to be a gift to her. The transaction was strictly within the family relationship of the husband, his mother, stepfather and son, and the trial court found it to be primarily for the purpose of providing his mother and stepfather “a constant, adequate monthly income free from the responsibilities of making management and business decisions.” The wife testified, “He told me that he was going to give his mother enough so that she could live a comfortable life, but that was all he was concerned with ....” It is not clear from the record whether or not the stock certificates were ever transferred. It is certain that the husband had not yet made any payments on the principal.

Although the trial court’s finding may not have been sufficient justification, on its face, for excluding the property, the trial court could have found the corporate interest to be the husband’s separate property in that it was excluded from the marital estate by a valid agreement because it was not acquired by them. If the trial court erred in its designation of the interest, this error does not necessarily invalidate the trial court’s conclusion where the court ultimately reached the correct result as it did in this particular case. Miller v. Miller, 635 S.W.2d 350, 352 (Mo.App.1982); Smith v. Smith, 561 S.W.2d 714, 718 (Mo.App.1978).

In keeping with the spirit of the antenup-tial agreement, this court concludes that the trial court did err in the disposition of certain other properties.

First, the couple accumulated during the marriage several Ford Mustang automobiles worth a total of $28,000. At the time of dissolution, only one of the automobiles was before the court. The husband, who had apparently been in possession of the vehicles, gave little or no explanation of their whereabouts. The wife was awarded the remaining automobile valued at $750, and $5,000 cash in lieu of the missing ones.

The trial court has the power to consider depleted assets in dividing the marital property. Mills v. Mills, 663 S.W.2d 369, 373 (Mo.App.1983). Marriage of Faulkner, 582 S.W.2d 292, 295-96 (Mo.App.1979); Daniels v, Daniels, 557 S.W.2d 702 (Mo.App.1977). Here, the trial court did consider the assets, but erred in its failure to divide the property equally according to the antenuptial agreement. Due to the uncon-troverted evidence concerning the value of the automobiles and their unknown whereabouts, the trial court should have awarded the wife half the value of the missing automobiles rather than determining her interest to be the unsubstantiated amount of $5,000. Under the authority of Rule 84.14, this court hereby awards the wife an additional $8,250 in order to effect the equal division contemplated by the parties.

Second, the trial court awarded the wife $4,000 as her interest in a $29,000 loan made to the husband’s son, Jeff Nedblake, during the marriage. The couple had purchased approximately $16,000 worth of silver which was co-mingled with silver the husband had brought into the marriage. Subsequently, the silver was stolen and the insurance company settled the loss for $39,-000. The $29,000 loan to the son was funded by the proceeds.

There was no evidence from which the trial court could find that $8,000 of the insurance proceeds were earmarked to cover the silver purchased during the marriage. The evidence does show there existed $16,000 in marital assets and those assets are traceable through a series of events to the Jeff Nedblake loan. This court concludes that the marital interest in the loan was not $8,000 as found by the trial court, but $16,000, that being the value of silver purchased during the marriage. The trial court should have set off to the wife $8,000 as her share of the insurance recovery and this court, pursuant to Rule 84.14, hereby awards her an additional $4,000.

In order to satisfy this court’s decision that the wife is entitled to receive a greater share of the interests in the automobile and silver proceeds than originally ordered, the decree is hereby amended as follows:

The respondent/husband is further ordered to pay the appellant/wife as her share of the marital assets the additional sum of $12,250.

The judgment as modified is affirmed.

All concur.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Ray CARTWRIGHT, Appellant.
    No. WD 35345.
    Missouri Court of Appeals, Western District.
    Dec. 11, 1984.
    Bruce W. Simon, Simon & Simon, Kansas City, for appellant.

      John Ashcroft, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
    Before PRITCHARD, P.J., and SHAN-GLER and BERREY, JJ.
   ORDER

PER CURIAM:

Appeal from conviction for passing a “no account” bad check, Section 570.120, RSMo 1978, and sentence of two years imprisonment.

Judgment is affirmed. Rule 30.25(b).


author: LOWENSTEIN, Judge.

text:
    In re the ESTATE OF Bess Newby MURRAY, Deceased. John L. BLESS, executor, Appellant, v. Betty G. BREEN, Respondent.
    No. 35395.
    Missouri Court of Appeals, Western District.
    Dec. 11, 1984.

      James D. Boggs, Robert H. Shaw, Witt, Boggs & Shaw, Platte City, for appellant.
    James L. Burgess, Berry F. Laws III, Johnson, Lucas, Bush, Snapp & Burgess, Kansas City, for respondent.
    Before LOWENSTEIN, P.J., and SOM-ERVILLE and NUGENT, JJ.
   LOWENSTEIN, Judge.

The respondent, Betty Breen, is an heir of a one-seventh interest in the appellant Murray estate. In an earlier case, Breen v. Miller, 627 S.W.2d 340 (Mo.App.1982), Breen successfully removed the personal representative of the estate. Breen then filed for her attorney’s fees and expenses to be reimbursed from the estate and the trial court awarded her $16,690.79 ($15,-000.00 attorney fees, $1,690.79 expenses). The successor personal representative of the estate took this appeal.

The one point on appeal contends that the trial court (the Probate Division Circuit Court Platte County) did not have jurisdiction to award attorney’s fees to a residuary beneficiary who successfully removed the former personal representative. The argument totally ignores the new judicial article, Article V of the Missouri Constitution which went into effect January 2, 1979. Article V § 16 which established probate courts, was repealed and replaced with Article V § 27.3 and .4(a). The new section eliminates separate probate judges and grants associate circuit judges the power to exercise probate jurisdiction, and “in connection therewith, [they] possess general equitable powers’’ It has long been recognized that “circuit courts are invested with general jurisdiction of suits in equity, and in a proper case are invested with all the powers inherent in an English Court of Chancery.” Bormann v. City of Richmond Heights, 213 S.W.2d 249, 252 (Mo.App.1948).

While it is true that no Missouri appellate court has approved an award of this kind, all the cases cited by the appellant predate the constitutional change. The appellant admits that the general rule for attorney fees is that they are recoverable only when authorized by statute or contract, when a court of equity finds it necessary to award them in order to balance benefits, or when they are incurred because of involvement in collateral litigation. Cimasi v. City of Fenton, 659 S.W.2d 532, 537 (Mo.App.1983); Forsythe v. Starnes, 554 S.W.2d 100, 111 (Mo.App.1977). As summarized in Borron, Jurisdiction and Practice in the Probate Division under the Court Reform Act, 36 Journal of the Missouri Bar, 13.16 (1980): “Since January 2, 1979, the probate division has possessed jurisdiction to entertain any probate matter regardless of whether or not the relief sought involved purely equitable remedies.” The trial court had jurisdiction to make this award.

Since the trial court did not erroneously declare or apply the law, the only question left for review under the standard of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), is whether there is substantial evidence to support the award.

While there is scant authority, Missouri seems to follow the rule that expenses incurred by a beneficiary of an estate, rather than the personal representative, must be shown to be beneficial to the estate as a whole rather than to just individuals interested therein. Foster’s Estate v. Theis, 290 S.W.2d 185 (Mo.App.1956) quoting Becht v. Miller, 279 Mich. 629, 273 N.W. 294, 297 (1937). See also, Cooper v. Jones, 78 App.Div.2d 423, 435 N.Y.S.2d 830, 834 (1981); Matter of Estate of Williams, 196 Neb. 139, 242 N.W.2d 612, 615 (1976); Pierce v. Tharp, 224 Tenn. 328, 455 S.W.2d 145, 148 (1970). As a general principle, the allowance of attorney fees under the criteria of “equitable balancing of benefits” is governed by the rule in Dugger v. Welp, 646 S.W.2d 907, 909 (Mo.App.1983), that “very unusual circumstances” must be shown. See also Cimasi v. City of Fenton, supra. As to this specific situation, where a beneficiary of an estate is seeking an allowance for attorney fees from the estate based upon an action for an accounting from and removal of a personal representative, there should exist the requirement that not only must the action have been successful, but that the result is beneficial to the estate.

The appellant does not challenge the trial court’s finding that Breen’s effort to remove the personal representative benefited the estate as a whole. In its order the trial court further said, “[h]ad Betty Breen not come forward to protect the interest of the estate, further neglect would have ensued at the hands of the former personal representative.” For more detail of the personal representative’s neglect, see Breen v. Miller, supra. Suffice it to say the former executor had allowed the estate to stay open for 26 years. In the years before the Breen action a farming business had been run without court approval and no settlements had been filed. It also appeared as if some of the estate’s assets had dissipated or been lost during the pendency of the first executor’s administration. The trial court was careful not to give Breen credit for attorney services that were either personal to her or which did not directly relate to securing the removal of the former personal representative. The appellant did not contest the reasonableness of the fees or expenses. Thus, there is substantial evidence to support the award of $16,690.79 for attorney’s fees and expenses.

The judgment is affirmed.

All concur.


text:
    Antionette MOORE, a Minor by Her Next Friend, Brenda MOORE, and Geraldine Peal, Respondents, v. MOBERLY REGIONAL MEDICAL CENTER, INC., Roger L. Bautista, M.D., and Ronald F. Naumann, Respondents, and Gulf Insurance Company, Appellants.
    No. WD 35487.
    Missouri Court of Appeals, Western District.
    Dec. 11, 1984.
    Clifford A. Falzone, Moberly, for appellants.
    John J. Allan, St. Louis, for respondent Antionette Moore.
    Edward J. O’Reilly, Kansas City, for respondent Moberly Regional Medical Center, et al.
    Before TURNAGE, C.J., and MANFORD and BERREY, JJ.
   PER CURIAM:

ORDER

This is a direct appeal from a judgment of apportionment, between the heirs of a deceased employee and the employer’s compensation carrier, of monies paid (pursuant to a settlement agreement) by a third party tortfeasor.

The judgment is affirmed.

Rule 84.16(b).


author: REINHARD, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Ira NEAL, Appellant.
    No. 47934.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 11, 1984.
    Henry B. Robertson, Public Defender, St. Louis, for appellant.
    John Munson Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   REINHARD, Chief Judge.

Defendant was convicted by a jury of possession of a Schedule IV controlled substance, and was sentenced by the court to serve three years in the Department of Corrections. He appeals, claiming that the pills seized from him by the police should not have been admitted into evidence because they were the product of an illegal search. We affirm.

Two police officers stopped defendant’s car for violating a traffic light. Two other people were in the car, and defendant was driving. As the police officers approached defendant’s car during this traffic stop, they observed defendant take a foil packet from the dashboard and place it in his pocket. One of the officers asked defendant what he had put in his pocket. Defendant responded, “It’s T’s and Blues,” and produced the package. The officer seized the package. Defendant claims that the officer’s question amounted to custodial interrogation and that the officers were therefore constitutionally required to give him Miranda warnings. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Since they did not give him Miranda warnings until after the question was asked, defendant argues that the seizure of the pills was the fruit of the improper questioning and cannot be used against him. We disagree.

The defendant voluntarily produced the pills after the question was asked. Once the officers saw the pills, they had probable cause to seize them. The question of which defendant complains was not a “custodial interrogation” requiring Miranda warnings. See Berkemer v. McCarty, — U.S. -, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984).

Affirmed.

DOWD, CRIST and CRANDALL, JJ., concur.


author: KAROHL, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Robert J. SMITH, Defendant-Appellant.
    No. 48146.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 11, 1984.

      David C. Hemingway, St. Louis, for defendant-appellant.
    John Ashcroft, Atty. Gen., Kristie Lynne Green, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   KAROHL, Judge.

Defendant-appellant appeals jury conviction and sentence on each of eight counts contained in an indictment. The main issue on appeal is the denial of a pretrial severance.

The eight charges arose out of three separate incidents. Count I charged robbery first degree when defendant by use of a weapon forcibly stole keys from Mary Thompson on December 10, 1982; Count II charged that defendant, in the same incident, stole a wristwatch from Candice Jones; and Count III charged armed criminal action in these robberies. Counts IV, V and VI charged defendant with robbery first degree, assault first degree and armed criminal action on December 11, 1982 when defendant forcibly stole a Smith and Wesson .38 caliber revolver from Jessie Bruce and caused him serious physical injury. The third incident resulted in charges of robbery first degree and armed criminal action, Counts VII and VIII, when defendant forcibly stole a motor vehicle from Wesley Hendrix with the use of a weapon.

Appellant raises two points on appeal. First he alleges that the trial court improperly overruled his motion to sever the counts as there was no proof of a common scheme or motive which linked the several offenses. Second he contends there was a prejudicial variance between Count V of the indictment which charged that he acted with Kent Scott when Scott shot Jessie Bruce and the corresponding verdict directing instruction which directed a finding of defendant’s guilt if either he or Scott shot Bruce. The severance issue has been preserved by a pretrial motion, citing former Rule 24.04 (now Rule 23.05), by reasserting the position in motion for new trial and by brief and argument before this court.

Appellant’s pretrial motion for severance, requested that Counts I, II and III should be tried together in one trial, Counts IV, V and VI in a second trial and Counts VII and VIII in a third. The state contends that all eight counts were properly tried in one trial because all of the separate acts were part of a common scheme or plan. The state maintains that the three incidents were either a related sequence of crimes connected to one another by a single scheme or plan, see State v. Foerstel, 674 S.W.2d 583 (Mo.App.1984) or that all three crimes were jointly planned or preconceived and the evidence relating to the similarity of their execution is proof of the single scheme or plan. See State v. Couvion, 655 S.W.2d 80, 82 (Mo.App.1983) and State v. (Marvin) Allen, 641 S.W.2d 471, 474 (Mo.App.1982). Appellant argues that the three incidents were improperly joined in the indictment as they were three separate acts not shown to be a part of the same transaction and there was no common scheme, plan or motive.

There is a distinction between proper joinder of charges under Rule 23.05 and severance of offenses at trial under Rule 24.07. The distinction was noted by our Supreme Court in State v. McCrary, 621 S.W.2d 266, 271 n. 7 (Mo. banc 1981), where the court said “[t]he joinder of offenses rule deals with the more basic question of what crimes can be charged in a proceeding.” Severance presupposes proper joinder and is addressed to the discretion of the trial court with regard to whether prejudice may or would result if charges properly joined were tried together. Although the pretrial motion for severance did not draw the distinction, the “motion to sever” was filed “pursuant to Supreme Court Rule 24.04” (now Rule 23.05). The motion requested that Counts I, II and III be separated from Counts IV, V and YI and separated from Counts VII and VIII because each incident was separate. Rule 24.04(b)(2) requires objections based on defects in the institution of the prosecution or in the indictment or information to be raised only by motion before trial. Accordingly, we address appellant’s contention as an attack on the indictment for improper joinder under Rule 23.05.

The charges were properly joined if the three incidents were part of a “common scheme or plan” or were part of the same transaction. State v. Buford, 582 S.W.2d 298, 302 (Mo.App.1979). Our Supreme Court first construed the meaning of these words in State v. McCrary, 621 S.W.2d 266, 271 (Mo. banc 1981). The court found that the essential test in determining whether a common scheme or plan exists is the requirement that all the offenses charged must be “products of a single or continuing motive.” 621 S.W.2d at 271. The court there found the continuing motive of revenge by harassment for the loss of defendant’s paramour and his children by her. McCrary’s children and their mother took up residence with another man. On November 13, 1978 McCrary apparently shot the other man and then the following March 8, 1979 he threw a firebomb into their home. The court held that the November 13, 1978 shooting and the March 8, 1979 arson and assault charges, and a concealed weapon charge based on a March 12, 1979 incident were properly joined in a single indictment because they were connected by the continuing motive of revenge by harassment.

In determining if there has been a misjoinder of offenses under Rule 23.05 only the state’s evidence is considered. State v. McCrary, 621 S.W.2d at 271 n. 8. Liberal joinder of criminal charges is favored in order to achieve judicial economy. State v. Couvion, 655 S.W.2d 80, 82 (Mo.App.1983).

The state’s evidence in this case was that on December 10, 1982 defendant and Kent Leroy Scott assaulted two women while on the porch of a home and took a set of keys from one and a wristwatch from another. On December 11, 1982, between 10:00 and 10:30 p.m. defendant and Scott approached a service station, robbed and shot Jessie Bruce taking his gun and wallet. On the same day, December 11, 1982 at approximately 10:30 p.m. defendant and Scott approached Wesley Hendrix outside his home and took his keys and car. The December 11, 1982 robberies occurred approximately four blocks from one another. The weapon taken from Bruce may have been used to accomplish the Hendrix robbery.

In State v. (Marvin) Allen, 641 S.W.2d 471 (Mo.App.1982) we held that apparently separate crimes may be connected where the same method of commission and a repeated course of conduct implies that each separate victim was a “target of opportunity” in a continuing act. Id. at 474. The state’s evidence in the present case does not support such finding. The separate incidents occurred in a different location and involved different victims. None of the victims were related to one another in any way.

In addition, the state’s reliance on State v. Couvion, 655 S.W.2d 80 (Mo.App.1983) is misplaced. In the Couvion case the defendant targeted the same place on separate occasions. The December 10 robbery of Thompson involved an aborted attempt to steal an automobile and the last incident involving the robbery of Hendrix resulted in the theft of a different automobile. Furthermore, there is no evidence that the same purpose motivated the taking of either automobile. This distinguishes State v. Allbritton, 660 S.W.2d 322 (Mo.App.1983) where the court found no error in joining rape, attempted rape and burglary charges when a frustrated rapist immediately thereafter committed an act of rape. The court there relied on the McCrary definition of common scheme and plan. No such connection appears in the state’s evidence in the present case. Finding no common scheme or motive connecting the three incidents we hold that the charges were improperly joined.

Having held that the joinder in the indictment was improper we must determine if defendant was prejudiced by the error. To join offenses which are not a part of a common scheme or plan exposes a defendant to prejudice by allowing proof of the commission of unrelated crimes. State v. Buford, 582 S.W.2d at 302. In order to determine that the evidence of the other crimes did not prejudice the defendant the reviewing court must be able to declare beyond doubt that the tainted evidence did not affect the jury in its fact finding process. State v. Garrett, 564 S.W.2d 347, 349 (Mo.App.1978). “An appellate court has no way of knowing and should not speculate about ... the extent to which the evidence entered into the jury’s decision making process.” Id. We cannot say that the defendant received a fair trial when evidence of unrelated crimes was improperly presented to the jury. If these cases had been separately charged or severed such evidence would not have been presented to the jury. See State v. (Gary) Allen, 674 S.W.2d 606 (Mo.App.1984) where we found no error in failure to sever because the same evidence would have been presented to the jury even if the charges were severed.

We hold that the joinder of Counts I — III with remaining counts was erroneous and contrary to the requirement of Rule 23.05. However because there was evidence that the weapon stolen from Bruce may have been used in the commission of the Hendrix robbery a short time thereafter and in the same general vicinity the trial court may in its discretion try Counts IV-VI together with Counts VII-VIII. Rule 24.07. Although not controlling on the exercise of discretion the similarity of time and proximity of location of the robberies is relevant in determining the presence of a common scheme or plan or of a continuous action. See State v. (Marvin) Allen, 641 S.W.2d at 474.

We need not reach appellant’s second issue as it may be avoided on retrial.

Reversed and remanded.

PUDLOWSKI, P.J., and GAERTNER, J., concur.

      .Rule 23.05 provides:
      All offenses that are based on the same act or on two or more acts that are part of the same transaction or on two or more acts or transactions that constitute parts of a common scheme or plan may be charged in the same indictment or information in separate counts.

      . Rule 24.07 provides that "[w]hen a defendant is charged with more than one offense in the same indictment or information, such offenses may be tried jointly or separately in the discretion of the court.”

      . McCrary considered Rule 23.05(b) but that rule was amended effective January 1, 1982 to its present form.


text:
    In re the ESTATE OF G. Sheridan IHL, Glenda S. Lang, Plaintiff-Respondent, v. William J. OETTING and Wendell R. Hess and Verna Hess, Defendants-Appellants.
    No. 48267.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 11, 1984.
    John B. Kistner, St. Louis, for defendants-appellants.
    Marian F. Koevenig, Clayton, for plaintiff-respondent.
   KAROHL, Judge.

This is an action to construe two provisions of the will of G. Sheridan Ihl. Plaintiff-respondent Glenda S. Lang was the wife of Wendell Richard Hess when the will was made. Glenda and Wendell were divorced between the time the will was executed and the death of Mr. Ihl. Defendant-appellant, Verna Pernell Hess, the current wife of Wendell Richard Hess, seeks to recover under Items 3 and 4 of Mr. Ihl’s will. Whether she is entitled to recover rests on the interpretation of G. Sheridan Ihl’s will and particularly the construction to be given to the named beneficiary under those items, “Mrs. Wendell Richard Hess.”

Item 3 provides that “[in] the event that I am the owner of the home in which I presently reside at the time of my death known as and numbered 4819 Bessie Avenue, I hereby devise and bequeath same to MR. and MRS. WENDELL RICHARD HESS, or the survivor of them, presently residing at # 17 Barbara Circle, Bridgeton, Missouri 63044.” Item 4 provides “I hereby give and bequeath such of the following items as I may own at the time of my death to the persons indicated: A. I hereby give and bequeath to my good friend MRS. ADELE GEISE ... such paintings, lamps, dishes, flat silver, bric-a-brac, figurines, and knicknacks that I own at the time of my death as she may select. Any such item that she does not select shall pass as part of the remainder of my household furnishings under ITEM FOUR B hereafter.” The following clause, section B, states that “All of the remaining household contents, furniture, furnishings and household equipment including tools and equipment not hereinafter specifically bequeathed, I give and bequeath to MR. and MRS. WENDELL RICHARD HESS, aforementioned, or the survivor of them.”

Mr. Ihl’s will was executed on October 26, 1979. He died on March 28, 1983. When the will was executed Wendell Richard Hess was married to Glenda S. Lang. Glenda Lang had married Mr. Hess in 1963. During their marriage and when Mr. Ihl executed his will Glenda Lang lived with Wendell Hess at # 17 Barbara Circle, Bridgeton, Missouri. They were divorced in September 1981. Following the divorce Wendell Richard Hess married the appellant, Verna Pernell Hess, on September 11, 1982. His former wife, Glenda, married a Mr. Lang on November 3, 1981.

Verna Hess claims that Mr. Ihl's will is clear and there is no ambiguity as to the person answering the description of Mrs. Wendell Richard Hess since she alone met that description on the date of Mr. Ihl’s death. The appellant concedes that Glenda Lang lived at # 17 Barbara Circle, Bridge-ton, Missouri under the name of Mrs. Wendell Richard Hess when Mr. Ihl wrote his will. Her position is that the general rule requiring that the testator’s will speaks at the time of death should be applied. She bases her claim on the fact that Mr. Ihl knew of Mr. Hess’ marriage to her subsequent to executing his will and that his failure to change the named beneficiary indicates his intention to devise and bequeath the property to the person answering the description of Mrs. Wendell Richard Hess at the time of his death. Because she alone met that description her position is that there is no ambiguity and that the trial court erred in allowing extrinsic evidence to be heard in its interpretation and construction of the will.

Respondent maintains that the will contains a latent ambiguity not apparent on the face of the will because the beneficiary, Mrs. Wendell Richard Hess, is further described by the address at which Mr. Hess lived with Glenda Lang when Mr. Ihl wrote his will. Verna Hess never lived at that address.

The trial court held that respondent, Glenda Lang, was the Mrs. Wendell Richard Hess named in the will. The court decreed that

in examining the six (6) page will, court notes testator’s careful pattern of adding the street address after the name of each person mentioned in his will_ testator fully intended that ‘Mrs. Wendell Richard Hess’ who resided at # 17 Barbara Circle Bridgeton, Missouri, to be the beneficiary of such bequests.... that Glenda S. Lang did have a number of contacts with decedent during the period of 1968 or 1969 to a date close to his death ... and that they did share a common interest and appreciation of antiques. The extrinsic evidence received aided the court in understanding the relationship and the intent of decedent in bequeathing his personal residence and a portion of its contents to Glenda S. Lang and her then husband, Wendell Richard Hess.

We conclude that there was a latent ambiguity. The trial court did not err in finding the language of the will ambiguous and correctly interpreted the testator’s intent based on the record of surrounding facts and circumstances at the time of the will’s execution.

It is the duty of the court in construing a will to determine the intent of the testator. Trantham v. Trice, 567 S.W.2d 389, 393 (Mo.App.1978); § 474.430, RSMo. 1978. The testator’s intention must be determined by the will itself and not by attempting to guess at what the testator may have meant or what he might have done under certain conditions not expressed in the will. Evans v. Rankin, 329 Mo. 411, 44 S.W.2d 644, 646 (1931). But when the terms of the will are not plain and are ambiguous as to what the testator intended, “certain auxiliary rules of construction and any surrounding circumstances must be considered.” Gardner v. Vanlandingham, 334 Mo. 1054, 69 S.W.2d 947, 950 (1934). When construing a will for the purpose of ascertaining the testator’s intention the law recognizes that a reviewing court “should consider [the testator’s] situation and the circumstances surrounding testator at the time of the execution of the will.” Shackelford v. Fifer, 269 S.W.2d 30, 33 (Mo.1954); Lansdale v. Dearing, 351 Mo. 356, 173 S.W.2d 25 (1943).

There are two types of latent ambiguities in a will: “(1) ... where the instrument describes a person or thing and more than one person or thing fits exactly the description or condition in the writing; (2) where no person or thing fits the description or condition but two or more persons or things fit the description in part and imperfectly.” Boatman’s Union National Bank v. Welton, 640 S.W.2d 497, 502 (Mo.App.1982). In the present case, the latent ambiguity arises from the description of the beneficiaries, “Mr. and Mrs. Wendell Richard Hess, or survivor of them, presently residing at # 17 Barbara Circle, Bridge-ton, Missouri 63044.” At the time of the testator’s death Verna Hess met the description of Mrs. Wendell Richard Hess but she never resided at # 17 Barbara Circle. At the time of the will’s execution Glenda Lang resided at # 17 Barbara Circle as Mrs. Wendell Richard Hess but she no longer met that description at the time of the testator’s death.

Because “a latent ambiguity is only disclosed by extrinsic evidence, it may be removed by extrinsic evidence.” Patch v. White, 117 U.S. 210, 217, 6 S.Ct. 617, 619, 29 L.Ed. 860 (1886). “The type of extrinsic evidence contemplated is evidence of objective, operative facts ... which give precise and explicit meaning to the language used by the testator and, thus, compel a clear inference of the testator’s exact intent.” (citations omitted). Breckner v. Prestwood, 600 S.W.2d 52, 55 (Mo.App.1980). The trial court reviewed the terms of the will in light of the facts and surrounding circumstances during the testator’s life and at the time of the will’s execution and ascertained the testator’s intention. Neither party cited any cases in which the court interpreted the particular terminology used in this will and we have found no such case. We note, however, that “by reason of the infinite variety of expressions employed in wills, precedents are of less value in their construction than in many other fields of inquiry.” McElroy v. Fluker, 265 S.W.2d 361, 363 (Mo.1954).

Appellants argue that the trial court gave undue weight to Glenda Lang’s testimony that she had a number of contacts with Mr. Ihl following her divorce from Mr. Hess and that she shared a common interest in antiques with Mr. Ihl. Appellants claim that Mrs. Lang’s testimony at trial was inconsistent with the previous deposition and her credibility was therefore impugned. The record indicates that Glenda Lang met Mr. Ihl in 1968 or 1969 and that her association with him continued until his death, that she had discussed antiques with him and had a clear recollection at trial of his home and specifically the antiques in it. The record further reveals that she had periodically visited Mr. Ihl during her marriage and after her divorce from Mr. Hess. The record also indicates that Mr. Hess sustained his friendship with Mr. Ihl until Mr. Ihl’s death and that Verna Hess knew Mr. Ihl some two to three years before Mr. Ihl died.

In a court tried case “the decree ... for judgment of the trial court will be sustained ... unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares ... or ... applies the law.” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We defer to the trial court’s judgment regarding the credibility of the witnesses, Rule 73.01(c), and find that there is substantial evidence in the record to support the trial court’s finding that Glenda Lang was the intended beneficiary to the devise and specific bequests named in Items 3 and 4 of the will. Accordingly, we affirm the judgment of the trial court.

PUDLOWSKI, P.J., and GAERTNER, J., concur.


author: PER CURIAM.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Ernest Wesley McKNIGHT, Defendant-Appellant.
    No. 48397.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 11, 1984.
    J. Martin Hadican, Clayton, for defendant-appellant.
    John Ashcroft, Atty. Gen., Jefferson City, for plaintiff-respondent.
   ORDER

PER CURIAM.

This is an appeal from a jury verdict and judgment convicting appellant of robbery in the first degree. § 569.020, RSMo.1978. The trial court sentenced appellant as a persistent offender to a term of twenty years imprisonment. § 557.036, RSMo. 1978 (1983 Cum.Supp.). The judgment is affirmed.


author: SIMON, Presiding Judge.

text:
    Harriett SCHWENKER, and Jack F. Schwenker, Attorney-in-fact for Harriett Schwenker, Plaintiffs, v. ST. LOUIS COUNTY NATIONAL BANK, Defendant and Third Party Plaintiff, v. Jack H. SCHWENKER, Jr., Third Party Defendant, and Highlands Insurance Company, Intervenor Defendant and Third Party Plaintiff-Appellant, v. ADDISON STATE BANK, Third Party Defendant-Respondent.
    No. 48432.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 11, 1984.

      Mark L. Kaltenrieder, St. Louis, for Addison State Bank.
    Morris K. Ebeling, Clayton, for plaintiffs.
    Robert W. Ehrig, St. Louis, for St. Louis County Bank.
    Francis L. Kenney, III, Clayton, for Highlands Ins. Co.
   SIMON, Presiding Judge.

Appellant Highlands Insurance Company (Highlands) appeals from an order of the trial court dismissing without prejudice Highlands’ third party petition against respondent Addison State Bank (Addison) for lack of personal jurisdiction over Addison. We dismiss the appeal.

In 1977, St. Louis County National Bank (County Bank) issued a $21,000 certificate of deposit bearing the names “Harriett S. Schwenker or Jack H. Schwenker, Jr.” Jack H. Schwenker, Jr. is the grandson of Harriett S. Schwenker who claims she has, at all times, had possession of the certificate of deposit issued by County Bank. Grandson, a Texas resident, obtained a $21,000 lost securities bond from Highlands, also in Texas, in favor of County Bank upon his representation that the original certificate of deposit issued and in the possession of his grandmother had been mislaid. After presenting the lost securities bond to County Bank in January 1980, grandson obtained a replacement certificate of deposit from County Bank issued in the same names as the original certificate of deposit. Grandson then assigned the replacement certificate of deposit to Addison, a Texas bank, in payment of a debt incurred in Texas by grandson and owed to Addison. Addison forwarded the certificate of deposit signed by grandson in a letter dated November 12, 1980, to County Bank for cashing. On November 24, 1980, County Bank cashed the certificate of deposit and sent Addison a cashier’s check for $20,322.20 payable to Addison for the grandson. The check was returned through the banking system for final payment.

Plaintiffs Harriett S. Schwenker and Jack Schwenker, her attorney-in-fact, sued County Bank on January 25,1982, claiming she has retained possession of the original certificate of deposit issued and that County Bank negligently issued and gave the replacement certificate of deposit to her grandson. County Bank then filed its third party petition against grandson. Highlands subsequently intervened as a defendant. Upon intervention, Highlands filed separate third party petitions against grandson and Addison. While County Bank obtained service of process on its third party petition against grandson who defaulted thereon, the record on appeal does not reflect if grandson was served with Highlands’ third party petition against him. Addison timely filed its motion to dismiss for lack of personal jurisdiction supported by an affidavit and memorandum. Highlands filed a memorandum in opposition but no counter affidavits. The trial court dismissed Highlands’ third party petition against Addison for lack of personal jurisdiction, and later designated its order of dismissal as final pursuant to Rule 81.06.

On appeal, Highlands contends the trial court erred in granting the motion to dismiss for lack of personal jurisdiction over Addison, a non-resident of Missouri. Highlands argues that § 506.500 RSMo 1978, Missouri's “long arm” statute, should be construed to include Addison within its reach. Highlands argues that Addison committed a tortious act in Missouri subjecting it to Missouri’s jurisdiction under subsection (3) of the “long arm” statute which reads in pertinent part as follows:

1. Any person or firm, whether or not a citizen or resident of this state, or any corporation, who in person or through an agent does any of the acts enumerated in this section, thereby submits such person, firm, or corporation, and, if an individual, his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of such acts:
(8) The commission of a tortious act within this state; ...

Section 506.500.1(3) RSMo 1978.

Highlands protracts its argument adding that to permit the dismissal of Addison who, as assignee and agent of the principal wrongdoer, the grandson, has received the $20,322.20 funds from the certificate of deposit, is to countenance Addison's unjust enrichment and thwarts “complete justice.” Addison responds Missouri did not acquire personal jurisdiction over Addison because the requirements of § 506.500 RSMo 1978, Missouri’s “long arm” statute, were not met and Addison lacked sufficient minimum contacts with the State of Missouri.

Although none of the parties have raised the issue, we have the duty sua sponte to determine whether an appealable judgment was rendered. Klippel v. Watkins, 667 S.W.2d 28, 30[1] (Mo.App.1984). The court below designated the dismissal order final and appealable under Rule 81.-06, but this designation is not conclusive. Id. [2], The right of appeal is statutory, and an appeal may be taken only from a final judgment. Id. [3]. Section 512.020 RSMo 1978. In this connection, a dismissal for lack of personal jurisdiction is, by the terms of the statute § 510.150 RSMo 1978 and Rule 67.03, without prejudice unless the order of dismissal finally adjudicates the claim of Highlands against Addison. If the motion to dismiss effectively attacks the petition’s failure to state a claim for relief, Rule 55.27(a)(6), the sustaining of such a motion will constitute a final judgment from which an appeal may be taken because the trial court is disposing of the claim on its merits; on the other hand, an order quashing the service for lack of jurisdiction or venue is not a final appealable order or judgment. Empiregas, Inc. v. Hoover Ball & Bearing Co., 507 S.W.2d 657, 660 (Mo.1974); Continent Foods Corp. v. National-Northwood, Inc., 470 S.W.2d 315, 317[1, 2] (Mo.App.1971).

The only issue litigated by the trial court was whether the statutory requirement of § 506.500.1(3) RSMo 1978, Missouri’s “long arm” statute, was met in order to confer personal jurisdiction over Addison. Beyond this threshold determination, the trial court never addressed or disposed of Highlands’ petition against Addison on its merits. The trial court’s dismissal for lack of personal jurisdiction operates no differently than an order to quash service for lack of jurisdiction which is not a final judgment from which an appeal will lie. Continent Foods Corp., 470 S.W.2d at 317. Such an order is properly challenged by extraordinary writ. See State ex rel. Metal Service Center of Georgia, Inc. v. Gaertner, 677 S.W.2d 325 (Mo. banc 1984); State ex rel. Caine v. Richardson, 600 S.W.2d 82, 83 (Mo.App.1980).

Appeal dismissed.

STEWART and STEPHAN, JJ., concur.


text:
    HARTFORD INSURANCE CO., Plaintiff-Appellant, v. FEDERAL INSURANCE CO., Defendant-Respondent.
    No. 48512.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 11, 1984.
    Daniel E. Wilke, Clayton, for plaintiff-appellant.
    Brent Winfield Baldwin, St. Louis, for defendant-respondent.
   KAROHL, Judge.

In a declaratory judgment proceeding plaintiff-appellant Hartford Insurance Company sought an interpretation of the coverage provisions of a liability insurance policy defendant Federal Insurance Company issued to Glosier Construction Company, Inc. § 527.020, RSMo. 1978. Glosier Construction Company, Inc. was not a party.

The trial court dismissed the petition without prejudice on either or both of two grounds: (1) plaintiff lacked standing to request a declaration concerning the rights and liabilities of Glosier and defendant under a policy issued to Glosier by defendant; (2) the declaration of rights and liabilities under the Glosier-Federal Insurance Company policy is premature. On February 21, 1984 the trial court entered the following order without comment, “Defendant’s motion to dismiss sustained.” At the request of plaintiff-appellant the court amended the order on March 15, 1984 and designated the dismissal to be without prejudice.

The issue of standing raised in this appeal was found in the negative in St. Paul Fire & Marine Insurance Co. v. Medical Protective Co. of Fort Wayne, Indiana, 675 S.W.2d 665 (Mo.App.1984). The St. Paul case was decided after the present appeal was briefed by the parties. Accordingly, the dismissal on that ground was proper.

We find that the dismissal on the ground that the request for construction and declaration of rights is premature was also properly granted. This suit was filed after Glosier, the insured, was sued in the circuit court of St. Charles County, Missouri by Bross-Heckmann, Inc. The Bross-Heckmann, Inc. suit claims damages against Glosier based on the theory that Glosier negligently constructed a building for plaintiff causing the walls of the building to shift, crack and break thereby permitting water to leak into the lower level of the foundation and walls. It may be that some of the negligent acts alleged by Bross-Heckmann, Inc. occurred during the time of coverage under the Federal Insurance Company policy and some during the coverage period of the policy of Hartford Insurance Company. However, those facts have not been determined nor has Glosier, the insured, tendered the defense of the Bross-Heckmann, Inc. suit to Federal Insurance Company. A declaration of rights and liabilities under the Federal Insurance Company policy would be premature until such tender of defense may occur.

We conclude that the trial court properly dismissed the petition on both grounds and affirm the dismissal.

PUDLOWSKI, P.J., and GAERTNER, J„ concur.


text:
    Ondrea M. OVERBY, Respondent, v. William Paul OVERBY, Appellant.
    No. 48605.
    Missouri Court of Appeals, Eastern District.
    Dec. 11, 1984.
    Charles R. Oldham, St. Louis, for appellant.
    Carl I. Katzen, St. Louis, for respondent.

      . Husband also claims that appellant’s notice of appeal was not timely filed. This point is without merit. Rule 81.05; Rule 81.04(a).

   REINHARD, Chief Judge.

Wife appeals from an amended judgment of the circuit court reducing husband’s child support obligations. We reverse and remand with directions.

The parties were divorced in March 1982 and husband was ordered to pay child support to the wife in the sum of fifty-five dollars per week per child for the parties’ two children. In August of 1982, husband filed an amended motion to modify which requested, among other things, a reduction in his child support obligation. Wife’s amended answer requested denial of the motion and prayed for attorney’s fees and costs. A hearing on the motion was held on August 18, 1983. Only the husband testified.

The trial court entered an order on December 22, 1983, providing in part:

The court having considered the record, the testimony, and the evidence adduced and entered into the record, now finds:
.... that there has been a showing of changed circumstances so substantial and continuing as to make the provisions of the decree respecting support unreasonable: due to the changed economic conditions of the respondent.
Accordingly, the court orders, adjudges, and decrees: The following modifications are made to the original decree and all subsequent decrees:
A. Henceforth, Petitioner [wife] shall have and recover of Respondent [husband] the sum of $65.00 Dollars per week/per minor child ....

No post-trial motions were filed, and no appeal was taken from the order.

On March 13, 1984, the trial court entered the following:

AMENDED ORDER AND JUDGMENT OF COURT
On this 18th day of August, 1983, this cause was called and evidence adduced on behalf of Petitioner and Respondent. ...
The court finds that there has been a substantial and continuing change as to the financial condition of the Respondent, which renders the previous Order of Support unreasonable.
The Court orders that the previous Order of Support be reduced to $65.00 per week for the two children of the marriage ... or $32.50 per week per child.

Costs assessed against Respondent.

Wife appeals from this order, claiming that the court no longer had jurisdiction to amend its judgment of December 22, 1983. Wife also contends the amended order is against the weight of the evidence.

We need not reach wife’s second contention, for we agree that the trial court did not have jurisdiction to enter the amended judgment. Under Rule 75.01, the trial court retains control over a judgment for thirty days after entry of the judgment. Because more than thirty days expired from the order of December 22, 1983, the court no longer had jurisdiction when the “amended order and judgment” was filed. However, when a clerical error has been made in recording the judgment of the trial court, lapse of time does not bar the court from correcting the record nunc pro tunc to reflect its prior actions. First National Bank of Collinsville v. Goldfarb, 527 S.W.2d 427 (Mo.App.1975). Here, husband argues that the order' of March 13 was actually a correction nunc pro tunc of a clerical error, and it therefore fits within this exception to the 30-day jurisdictional rule. We disagree.

Nunc pro tunc proceedings may be used only to correct clerical mistakes in recording the judgment rendered, and may not be used to correct judicial mistakes, or to show what the court intended to do but did not do. First National Bank of Collinsville v. Goldfarb, 527 S.W.2d 427, 430 (Mo.App.1975). A nunc pro tunc order cannot be used to render a judgment different from that actually rendered, even though the judgment rendered was not the judgment the judge intended to render. War ren v. Drake, 570 S.W.2d 803 (Mo.App.1978); Aronberg v. Aronberg, 316 S.W.2d 675, 681 (Mo.App.1958). “To constitute a valid correction nunc pro tunc, ... the entry must show that it is based on some record ... supplying the facts which authorize the corrective entry.” Lowe v. Labor and Industrial Relations Commission, 594 S.W.2d 365, 367 (Mo.App.1980).

Here, no motion for correction of the record nunc pro tunc was filed by either party after the order of December 22, 1983. Apparently, the court entered the order of March 13, 1984, without notice to the parties, and with no record indicating the basis for the new order. Indeed, no reference whatsoever was made to the December 22 order. We find no clear indication from the record that the judgment entered on December 22 was different from what the trial court actually rendered. Although rendition of that judgment may have been a judicial error, the trial court may not correct it after 30 days of its entry.

Reversed and remanded with directions to reinstate the original judgment entered.

DOWD, CRIST and CRANDALL, JJ., concur.


author: HOGAN, Judge.'

text:
    Robert Wayne DECK, Appellant, v. STATE of Missouri, Respondent.
    No. 13686.
    Missouri Court of Appeals, Southern District, Division Three.
    Dec. 12, 1984.
    Lenzie L. Leftridge, Jr., Plat River, for appellant.
    John Ashcroft, Atty. Gen., George Cox, Special Pros. Atty., Jefferson City, for respondent.
   HOGAN, Judge.'

Petitioner Robert Wayne Deck (defendant) pled guilty to the offense of second-degree murder as defined and denounced by former § 565.004, RSMo 1978, and his punishment was assessed at imprisonment for 25 years. Thereafter, defendant filed a motion to withdraw his plea in a postconviction proceeding under Rule 27.26. A hearing has been held, the trial court has denied relief and the defendant now appeals.

The defendant shot and killed one Samuel Daniel “Bud” Updegraf in Dix Food Mart in Lutesville, Missouri, on October 31, 1980. Five shots were fired. Four struck the victim, who was the defendant’s father-in-law. The defendant was thereafter charged with capital murder, as defined and denounced by former § 565.001. On April 1, 1981, the defendant appeared with employed counsel before Honorable A.J. Seier, a regular and acting judge of the 32nd Judicial Circuit. The State was represented by Mr. Neil MacFarlane, an Assistant Attorney General. Mr. MacFarlane announced to the court that he had discussed a plea bargain with defendant’s counsel; as a result, Mr. MacFarlane asked leave to file an amended information reducing the charge from capital murder to murder in the second degree. Leave to file the amended information was granted. The amended information, which correctly charges the defendant with second-degree murder, was then filed. The defendant was asked if he understood the charge and he answered: “Yes, sir.” The court then proceeded as follows:

“THE COURT: Do you understand that charge, Mr. Deck?
THE DEFENDANT: Yes, sir.
THE COURT: What are you charged with, sir?
THE DEFENDANT: Second degree murder.
******
THE COURT: What plea would you like to enter?
THE DEFENDANT: Guilty.
THE COURT: Would you please raise your right hand and be sworn.”

Defendant was thereupon sworn. The court then addressed the defendant:

“Q. (BY THE COURT:) Now, Mr. Deck, your attorney has handed me a Petition to Enter a Plea of Guilty, which consists of three pages, and I'm sure you've had sufficient time to go over those questions in that Petition with him, have you not?
A. Yes, sir.
Q. Did you understand all these questions?
A. Yes, sir.
Q. Did you answer all of them to the best of your ability?
A. Yes sir.
Q. Insofar as Mr. Syler’s representation of you, do you have any gripes or complaints about his representation?
A. No, sir; he did a good job.
Q. Has he done everything you told him to do?
A. Yes, sir.
Q. Has he failed or refused to do anything?
A. No, sir.
Q. Do you believe that he has sufficiently investigated this case so that he may competently advise you on how to proceed in this matter?
A. Yes, sir.
* * * * * *
Q. Now, Mr. Deck, your Petition indicates you’re thirty-five years of age and that you completed the 12th grade; is that correct?
A. Yes, sir.
* * * * * *
Q. Now, in paragraph 5, you state, ‘I represent to the Court the following acts in connection with the charge made against me,’ and then someone has written, ‘On October 31,1980,1 killed Samuel Daniel ‘Bud’ UpDegraf by shooting him with a gun.’ Is that what you did that makes you think you’re guilty of this charge, Mr. Deck?
A. Yes, sir.
Q. You did kill Mr. UpDegraf?
A. Yes, sir.
Q. You shot him with a gun?
A. Yes, sir.
Q. And you did this on October 31, 1980?
A. Yes, sir.
Q. And you did this in Bollinger County?
A. Yes, sir. (Our emphasis.)
* * * * * *
Q. All right. Now, Mr. Deck, you know there are a number of defenses to the charge of murder in the second degree. Have all of them been explained to you by [trial counsel]?
A. Yes, sir.
Q. Do you have any question about any of the defenses that you may possibly have to this charge?
A. No, sir.’’ (Emphasis added.)
* * * * * *

What we have recited is sufficient to show that defendant was present with employed counsel; that the charge was read to him; that he assured the court he had no question about the nature of the crime with which he was charged, and that upon oath in open court defendant admitted his guilt. It was further explained to the defendant that by pleading guilty he was giving up his Sixth Amendment rights: 1) to a speedy and public trial; 2) to a trial by jury; 3) to a confrontation of witnesses, and 4) to compulsory process. The defendant unequivocally stated he understood he was giving up those rights and further understood that he would have no opportunity to testify in his own behalf. Sentencing was deferred. The State recommended a life sentence but the trial court sentenced the defendant to 25 years imprisonment.

The whole substance of defendant’s petition under Rule 27.26 is that his plea of guilty was not knowingly and voluntarily given because the intent which is a necessary element of second-degree murder was never explained to him, and he was gulled into believing that he would be paroled in two years. Since McMahon v. State, 569 S.W.2d 753 (Mo. banc 1978), was handed down, our courts have consistently held that Rule 24.02 does not require the trial court to explain every technical element of the offense charged before it accepts a plea of guilty. Id., 569 S.W.2d at 758; Hicks v. State, 633 S.W.2d 229, 231 (Mo.App.1982). Apparently aware of those rulings, defendant contends his counsel was ineffective because counsel never explained the necessary intent.

As indicated, the defendant was originally charged with capital murder. As best we can determine the facts of the situation the defendant and his wife were in the process of a dissolution of their marriage; he was having financial difficulties and, as one would expect, was having trouble with his father-in-law, the victim. About 5 p.m. on October 31, 1980, defendant went to the food market where his wife was working. He walked in the front door with a pistol in his hand. There was some evidence that defendant cursed his father-in-law. The victim reached out for the pistol; the defendant claimed his victim attempted to grasp the pistol by the trigger guard, and therefore it was the victim’s action, not his, which caused the pistol to discharge. There was no dispute, however, that the pistol discharged five times and that the victim was struck by four of the shots. Defendant insisted to his trial counsel that he had entered the food mart without a fixed intention to take human life. Upon the trial of this motion defendant again asserted that he had no fixed intention to cause his father-in-law’s death. Reduced to its essence, the defendant’s bitter complaint is that he stands convicted of intentionally taking the life of another when no such thought ever crossed his mind.

At the time defendant entered his plea it was the law that intent, in the context of second-degree murder, could be found when the death could reasonably have been expected to follow from a defendant’s voluntary act, irrespective of any subjective desire on the part of the defendant to cause the death of his victim. State v. Powell, 630 S.W.2d 168, 170 (Mo.App.1982); State v. Gillam, 588 S.W.2d 13, 16 (Mo.App.1979). Moreover, when a defendant’s explanation of his act was so inconsistent with the physical facts and the conduct of the defendant as to be unreasonable and incompatible with the common experience of mankind, his naked assertion that he did not have a purpose to cause death or great bodily harm did not require an instruction on the subject of killing by accident or misfortune, much less compel a jury finding that the killing was excusable. State v. Bevineau, 460 S.W.2d 683, 688[10] (Mo.1970).

From reading the transcript of the hearing, we are convinced that the law was so explained to the defendant by his trial counsel. Considering both defendant’s testimony and that of trial counsel at the hearing, it is inferable that trial counsel did advise defendant that he could and might be found guilty of second-degree murder even though it was “accidental” in the sense that defendant did not enter the food market with a fixed design to kill his victim; further, defendant was told that in light of the fact that the pistol discharged five times, and in light of possible testimony from a witness that defendant stated after the shooting “I guess I showed him,” it was highly unlikely that a jury would find the killing “accidental.” Any subjective belief that the killing was entirely “accidental” was wholly unreasonable and such subjective belief does not warrant relief from a guilty plea. McMahon v. State, 569 S.W.2d at 758[5]. We find, as did the trial court, that the defendant was not misled by his trial counsel concerning the “intent” necessary to establish second-degree murder.

Neither do we find that defendant was misled concerning the possibility of parole. Trial counsel explained at the hearing that he told defendant there was a possibility defendant might be considered for parole after two years if he pled guilty to second-degree murder. Such appears to be the gist of former § 549.261.2, in effect when the defendant was sentenced.

It is our view that when a criminal defendant seeks to withdraw his plea of guilty and vacate the sentence imposed thereon, he has the burden to show by a preponderance of the evidence that acceptance of his plea has caused a manifest injustice. Winford v. State, 485 S.W.2d 48, 49[2-4] (Mo. banc 1972); Moore v. State, 624 S.W.2d 520, 522 (Mo.App.1981); Martin v. State, 558 S.W.2d 701, 703 (Mo.App.1977). This was held to be true in Winford even though the record on the guilty plea was not regular on its face. Here the trial court concluded the plea was knowingly and voluntarily entered. We have set out a considerable part of the record for the purpose of showing that the proceeding upon the tender of the guilty plea was fair and regular on its face. The principles applied in Winford and the precedents following it are controlling. The judgment is affirmed.

PREWITT, C.J., CROW, P.J., and TITUS and MAUS, JJ., concur.

      . References to statutes and rules are to RSMo 1978 and Missouri Rules of Court (15th ed. 1984), except where otherwise noted.


author: FLANIGAN, Judge.

text:
    Orville S. HEIDE, et ux., Plaintiffs-Respondents, v. Raymond L. SHEEKS, et ux., Defendants-Appellants.
    No. 13445.
    Missouri Court of Appeals, Southern District, Division One.
    Dec. 17, 1984.

      John E. Price, Woolsey, Fisher, Whiteaker, McDonald & Ansley, Springfield, James E. Curry, Ava, for defendants-appellants.
    W. Price Hamed, Gainesville, for plaintiffs-respondents.
   FLANIGAN, Judge.

Plaintiffs Orville Heide and Dorothy Heide, husband and wife, brought this action against defendants Raymond Sheeks and Carolyn Sheeks, husband and wife, seeking to quiet title to 64.2 acres of rural land in Ozark County. The trial court, sitting without a jury, found the issues in favor of plaintiffs. Defendants appeal.

Plaintiffs, who base their claim on adverse possession, had the burden of proving by the preponderance of the evidence the existence, for the statutory period, of every element of adverse possession. They had the burden of showing actual, hostile (i.e. under a claim of right), open and notorious, exclusive, and continuous possession of the disputed land for 10 years. Failure to prove any element prevents the ripening of title by adverse possession. Teson v. Vasquez, 561 S.W.2d 119[1,2] (Mo.App.1977) and authorities there cited.

Defendants challenge the adequacy of plaintiffs’ proof with respect to each of the elements. Defendants also contend that the judgment, in finding the presence of all the elements, is against the weight of the evidence.

Appellate review of this action is governed by Rule 73.01, V.A.M.R., as construed in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). See Roth v. Flieg, 536 S.W.2d 39 (Mo. banc 1976). This court must sustain the judgment unless there is no substantial evidence to support it, unless it is against the weight of the evidence or unless it erroneously declares or applies the law. Setting aside the judgment on the ground that it is against the weight of the evidence is a power to be exercised “with caution and with a firm belief that the ... judgment is wrong.” Murphy v. Carron, supra, at 32. For the reasons which follow, this court finds merit in the appeal and reverses the judgment.

Although both plaintiffs and defendants own other land in the area, this litigation concerns two 160-acre tracts. Plaintiffs have record title to one of the tracts and defendants have record title to the other. Each tract consists of four “square 40s.” For the purpose of this opinion plaintiffs’ four 40s will be designated Lot 1, Lot 2, Lot 3, and Lot 4, and defendants’ four 40s will be designated Lot 5, Lot 6, Lot 7, and Lot 8.

Lot 1 is the westernmost 40 of plaintiffs’ land, Lot 2 lies immediately east of Lot 1, Lot 3 lies immediately east of Lot 2, and Lot 4 lies immediately east of Lot 3. Lot 5 lies immediately south of Lot 1, Lot 6 lies immediately south of Lot 2, Lot 7 lies immediately south of Lot 3, and Lot 8 lies immediately south of Lot 4. From the record title standpoint, the true boundary between the two 160-acre tracts is one mile long, running east and west, and is the south border of plaintiffs’ land and the north border of defendants’ land.

The 64.2 acres in dispute lie south of the true boundary and north of an old meandering fence. Generally speaking, the fence commences at a point on the west line of Lot 5, the point being approximately 459 feet south of the northwest corner of Lot 5. From that western terminus the fence meanders northeasterly across Lot 5 and then turns easterly and enters Lot 6. It then proceeds northeasterly to a point very close, perhaps within five feet, of the northeast corner of Lot 6 where it encounters a bluff. The fence then turns south and enters Lot 7 and meanders generally easterly across Lot 7 until it reaches a point on the west line of Lot 8 at which point it turns south-southeasterly and proceeds deep into Lot 8 to a point approximately 1307 feet south of the north line of Lot 8. From that point it proceeds northeasterly to the east line of Lot 8.

The disputed land consists of 17.7 acres in Lot 5, 10.4 acres in Lot 6, 9.6 acres in Lot 7, and 26.5 acres in Lot 8.

Plaintiffs presented seven witnesses: plaintiff Dorothy Heide, plaintiff Orville Heide (“Orville”), Loma Foster, Gareth Heide (son of plaintiffs), O.J. Friend, Elmer McFarland and Bobby Robbins. The last three of those witnesses were employees of defendants. The defendants presented three witnesses: surveyor James Henderson, defendant Raymond Sheeks, and the county assessor. The latter gave unchallenged testimony that the taxes on the disputed land had been paid by defendants and their predecessors. As will be seen, several of the plaintiffs’ witnesses gave testimony damaging to the plaintiffs.

The presentation of the evidence was not too orderly and some of the testimony is vague. The plaintiffs acquired Lot 1 in 1963 and later that year obtained title, from another source, to Lots 2, 3, and 4. The latter three lots are called “the Foster place.” Before plaintiffs obtained title to the Foster place, it was owned by Loma Foster and her husband.

Loma Foster testified that the meandering fence had been in place since prior to 1937. She testified that her husband cultivated undefined portions of Lots 6, 7, and 8 lying north of the fence. Her testimony, however, did not mention how long that cultivation lasted and she also indicated that the cultivation ended four or five years before 1963. Her testimony was insufficient to show that she and her husband had established title by adverse possession to the disputed portions of Lots 6, 7, and 8, the most glaring omission being that she failed to testify that any possession of the disputed land on their part had lasted continuously for 10 years. That possession, of unknown duration, ended several years before plaintiffs occupied the Foster place and thus there is no issue of possible “tacking,” for the Foster possession of the disputed land was not continuous with that of plaintiffs.

Defendants acquired record title to their 160 acres in June 1980. The meandering fence, which defendants admit “has been in existence at least 60 years,” consisted, in places, of barbed wire, and, in other places, of woven wire, nailed to wooden posts and tree trunks. Dorothy Heide described the fence as being “pretty decrepit.” The eastern portion of the fence, in Lot 8, was “an old rail fence.” There was no testimony concerning who originally installed the fence or the reason for its installation, nor was there evidence of any express agreement between the respective predecessors of the parties that the fence would constitute the boundary.

Dorothy Heide testified that her husband ran cattle on at least some portions of the disputed area and Orville testified that he had cut some timber off it. “[Pasturing cattle or cutting timber do not in themselves establish adverse possession ... but they do tend to show claim of ownership....” Miller v. Warner, 433 S.W.2d 259, 264 (Mo.1968). Orville conceded, however, that the disputed area is “rough, mostly glade land, forest, timber. ... We are not talking about farm land.” Dorothy described the disputed land as “hilly timber land and forest land. We are not talking about any cultivated fields, we never did cultivate it.”

There are four significant events which illuminate the issues and control their resolution. Those events, in the order of their occurrence, are: (1) the making of the Sneerbusch survey; (2) the making of the Henderson survey; (3) the bulldozing of the true boundary — that is, the one-mile-long east-west boundary between the two 160-acre tracts; and (4) the follow-up bulldozing.

In 1979, prior to defendants’ acquiring title to their 160 acres, a surveyor named Sneerbusch was employed by Orville and by another landowner to make a survey which included the one-mile boundary line between Orville’s 160 acres and the 160 acres now owned by defendants. Orville contributed $60 to that survey. Although Orville disclaimed seeing Sneerbusch’s plat of the survey, if in fact he made a plat, both Orville and his wife admitted seeing ribbons placed by Sneerbusch on trees to indicate the boundary line.

On his deposition, given a month before the trial, Orville testified that the boundary line, as found by the Sneerbusch survey, was “300 or 400 yards down the hill” from the fence. Orville also said in his deposition that Sneerbusch “located the line about where the bulldozed line [was later] cut through,” a reference to the third significant event to be discussed later. At the trial, however, Orville testified that the Sneerbusch line “followed the fence.... There was variation, a little bit, just maybe a few feet on one side and a few feet on the other.” This court finds that Orville’s trial testimony with regard to the Sneer-busch line, which is at variance with the testimony of the other witnesses (including Orville’s witnesses), is unworthy of belief.

The ribbons left by Sneerbusch were also seen by O.J. Friend, Elmer McFarland, and defense witness James Henderson, a fact which will be mentioned later. Orville, who had worked with a survey crew in the 1940s, testified that he knew a surveyor “runs straight lines” and, of course, the line which Sneerbusch was surveying ran straight east and west.

In May 1982 defendants employed James Henderson, a registered surveyor, to survey the boundaries of their land, including the one-mile boundary line between the two 160-acre tracts. Henderson made the survey and his plat, which shows the location of the boundary line and the meandering fence, was introduced into evidence. Henderson, of course, was surveying the same boundary line previously surveyed by Sneerbusch. Henderson testified that the two lines generally coincided over the course of the mile. He, too, had seen the ribbons left by Sneerbusch. Henderson testified that there might be a “few feet difference ... 5 to 10 feet variation” between the line as surveyed by him and the Sneerbusch line.

The third significant event was the bulldozing of the true boundary — the bulldozing along the boundary line as surveyed by Henderson. Henderson testified that the day before this bulldozing took place he had notified Orville to be there because they were going to do the bulldozing. On the day of the bulldozing, and before it took place, several of the witnesses gathered on the ridge road, which runs generally north and south along the west side of Lot 7 and enters Lot 2. Present were Orville, Dorothy Heide, O.J. Friend, Elmer McFarland, Bobby Robbins, and James Henderson. It will be observed that all of these people, except Henderson, were plaintiffs’ witnesses.

Using two bulldozers, and then only one because the other broke down, Friend and McFarland bulldozed a “swath” along the boundary line as located by the Henderson survey. By the use of signals and walkie talkies, Henderson directed the movements of the bulldozers so that the swath was cut along the true boundary. Although the record does not show the width of the swath, both sides introduced photographs of it, including aerial photographs, and it appears to be at least the width of a country road also shown in the aerial photographs.

Friend testified that the swath was cut for the entire mile between the two 160-acre tracts and that this dozing “took a day or a little more.” As previously indicated, the dozing commenced at the ridge road, which is one-fourth of a mile east of the western terminus of the true boundary line, and proceeded easterly. Friend, McFarland, and Henderson all testified that the bulldozers, in following the Henderson line, also followed the ribbons of the Sneerbusch line.

Before the bulldozing commenced, according to the testimony of Friend, McFarland, and Robbins (all plaintiffs’ witnesses), and defense witness Henderson, a conversation took place between Orville and Robbins to the effect that the swath made by the bulldozers would be “a little wider than normal,” if Orville so desired, in order to accommodate a road for Orville’s use on the north side of the fence which was to be erected on the swath. Orville said such was his desire. Significantly, Orville did not dispute that testimony.

Dorothy Heide testified that the swath varied “150 to 300 feet” from the meandering fence but generally “stayed pretty even” with the fence. The fact is, of course, that the deviation of the meandering fence from the swath exceeded 1300 feet at one point.

It is most significant that at no time during the bulldozing of the swath did Orville or his wife complain about the making of the swath itself. At no time did they say, “Don’t bulldoze through there. You are hundreds of feet north of what we claim to be our southern boundary.” Indeed the record offers no explanation at all for the swath itself to have been cut except for the purpose of delineating the true boundary and erecting a new fence.

Several days later, the record does not disclose how many, McFarland was doing some “follow-up” bulldozing in the disputed area, that is, south of the swath made by the bulldozers and north of the meandering fence. Gareth Heide confronted Friend and McFarland and asked them to stop bulldozing. Gareth had not been present while the swath was being bulldozed. Gareth was acting on behalf of his parents. Thus the anomaly arises that, belatedly, the plaintiffs, through their son, objected to the follow-up bulldozing but had previously made no objection at all to the bulldozing of the swath. This court agrees with defendants that such conduct on the part of the plaintiffs, in not objecting to the bulldozing to the cutting of the swath, was strong evidence that they were not claiming ownership of the disputed land.

“The second element which must be proved to establish adverse possession is that the possession be hostile or under a claim of right. Naked possession asserted for any period of time, no matter how lengthy, is insufficient to ripen into adverse possession. Fiorella v. Jones, 259 S.W. 782 (Mo.1924). For possession to be hostile it is neither required that the true owner have knowledge of the hostile claim of right or that the claimant intend to deprive him of title. Glenville v. Strahl, 516 S.W.2d 781 (Mo.App.1974). The possession must be opposed and antagonistic to the claims of all others, i.e., the claimant must occupy the land with the intent to possess it as his own and not in subservience to a recognized, superior claim of another. Walker v. Walker, supra [509 S.W.2d 102 (Mo.1973)]; Gates v. Roberts, 350 S.W.2d 729 (Mo.1961). Furthermore, the claim of right or ownership must be unequivocal. Reinheimer v. Rhedans, 327 S.W.2d 823 (Mo.1959).” Teson v. Vasquez, 561 S.W.2d 119, 127 (Mo.App.1977) (emphasis added).

This court holds that the finding of the trial court of the presence of the “second element” is against the weight of the evidence and that the trial court erred in not decreeing that title to the disputed land was in defendants.

A man does not agree to the cutting of a wide swath through a forest, the installation of a new fence along it, and the building of a road on the north side of it when in fact he is claiming title to the area of all of the swath itself and approximately 60 acres lying south of it which would be enclosed by the new fence.

The judgment is reversed and the cause remanded for entry of a new judgment consistent with this opinion.

TITUS, P.J., and GREENE, J., concur.

      . The judgment of the trial court decreed that plaintiffs were the legal owners of the 64.2 acres mentioned in the pleadings and also an additional 18.6 acres. At oral argument the parties agreed that the 18.6 acres were improperly included in the judgment .and should be deleted.

      . "Adverse possession must be shown to have been continuous and unbroken for the whole prescribed period of limitation.” Allen v. Wiseman, 359 Mo. 1026, 224 S.W.2d 1010, 1013[6] (1949). “The moment the possession is broken, it ceases to be effectual, because as soon and as often as a break occurs, the law restores the constructive possession of the owner.” 3 Am.Jur.2d Adv.Poss. § 54, p. 144.


author: MAUS, Judge.

text:
    ROBERT R. WISDOM OIL COMPANY, INC., Plaintiff-Appellant, v. William GATEWOOD, et al., Defendants-Respondents.
    No. 13732.
    Missouri Court of Appeals, Southern District, Division Three.
    Dec. 17, 1984.

      G.H. Terando, Little, Million, Terando, Schellhammer & Associates, Poplar Bluff, for plaintiff-appellant.
    Ted M. Henson, Jr., Scott & Henson, Poplar Bluff, for defendant-respondent Earl Lynxwiler.
   MAUS, Judge.

This action had its origin in the appellant-mortgagee’s petition for judicial foreclosure of a deed of trust. At the sheriff’s sale at public vendue, the real property was sold to a third party, the respondent. See Koester v. Koester, 543 S.W.2d 51 (Mo.App.1976). The appellant filed a motion to set aside that sale. § 443.270. See Carr v. Carr, 253 S.W.2d 191 (Mo.1952); Huff v. Huff, 622 S.W.2d 731 (Mo.App.1981). The trial court denied that motion. The appellant presents two points.

A very brief recitation of the facts will suffice to treat these two points. The appellant instituted this action for judicial foreclosure of a deed of trust securing a promissory note in the amount of $26,-669.89. The same day Smith Lumber Company filed its petition to enforce a mechanic’s lien upon one of the three tracts described in the deed of trust. The mechanic’s lien was in the amount of $2,276. The actions were consolidated. Thereafter, a judgment by stipulation and default was entered. That judgment provided that the one tract be sold, with the proceeds to be applied to court costs and expenses, then $1,850 to Smith Lumber Company, and the remaining balance to appellant.

After due publication, the sale was held January 16, 1984 at 1:00 p.m. at the front door of the Ripley County Courthouse. The high bid of $2,300 was made by Earl Lynxwiler, the respondent. No one appeared at the sale on behalf of the appellant-mortgagee.

The appellant’s motion to set aside was filed four days later. A hearing on the motion was held on March 19, 1984. The property was a lot 100 feet by 220 feet on Highway 160 a short distance from Doni-phan. It was lower than the grade of the highway. It was improved by a building 44 feet by 60 feet. The building was constructed of rough sawed pine lumber with a concrete floor. It was partially wired, but had no water or plumbing. Two witnesses said it was in an extremely poor location for business purposes. The respondent owned adjoining land. He plans to use the building for a hay bam.

The appellant presented the testimony of its employee Herman Wisdom. It was his opinion the reasonable market value of the property was approximately $25,000. The respondent presented the testimony of three witnesses concerning the value of the property. The respondent testified the value was $3,500 to $4,000. A real estate salesman of 25 years experience testified that the value of the building and lot was approximately $4,500. The third witness, a real estate broker of 32 years experience, valued the property at $4,750.

Herman Wisdom testified he was supposed to attend the sale, but had to go out of town and didn’t get back. Another employee of Wisdom Oil Company in Doniphan testified she received a call at about 1:00 p.m. She was told to go to the courthouse and bid $25,000 or more if needed. The employee arrived a little after 1:00 p.m. and was told by the sheriff that the sale had already taken place. The employee had not taken any money with her. She had no cash in hand with which to pay if successful. There was no other explanation why there was no representative of appellant-mortgagee at the sale at 1:00 p.m.

Section 443.270 directs that the execution in this case be executed and returned as executions in ordinary civil suits. See State ex rel. Hartley v. Innes, 137 Mo.App. 420, 118 S.W. 1168 (1909). Generally, to set aside an execution sale, the party challenging the sale must prove a recognized basis and that he was prejudiced by the sale. Henning, Missouri Executions on Money Judgments, § 3-31 (1984). It has been repeatedly held, “A motion to set aside a judicial sale is addressed to the sound discretion of the trial court.” Dougherty v. McKeever, 502 S.W.2d 430, 431 (Mo.App.1973). Also see Boxwell v. Boxwell, 444 S.W.2d 510 (Mo.App.1969); City of St. Louis v. Peck, 319 S.W.2d 678 (Mo.App.1959). A sound exercise of that discretion must be based upon a consideration of the relevant factors.

The appellant’s first point is that the trial court erred because the purchase price is such grossly inadequate consideration as to shock the conscience. Early cases held, “It is equally well settled that inadequacy of price alone will not justify the setting aside of a judicial sale, and the court so declared; Rogers & Baldwin Hardware Co. v. Cleveland Bld’g Co., 132 Mo. 442, 34 S.W. 57, 60 (banc 1896). However, later cases recognize an exception to that rule. “It has always been held by this court that inadequacy of price alone will not justify the setting aside of a sheriff’s sale of real estate under execution, unless the price is so inadequate as to shock the moral sense and outrage the conscience.” Mangold v. Bacon, 237 Mo. 496, 141 S.W. 650, 657 (banc 1911). “This rule has since been modified when the consideration was so shockingly inadequate as to constitute fraud.” Ragan v. Looney, 377 S.W.2d 273, 280 (Mo.1964). Also see Wieser v. Linhardt, 257 S.W.2d 689 (Mo.1953); Hart v. Parrish, 244 S.W.2d 105 (Mo.1951); Ellis v. Powell, 117 S.W.2d 225 (Mo.1938).

In a related field, a recent case held that inadequacy of consideration is not a basis for setting aside a tax sale under the Jones-Munger law. Powell v. County of St. Louis, 559 S.W.2d 189 (Mo. banc 1977). However, the considerations that form the basis for that decision are not applicable to judicial sales. The doctrine expressed in Ragan v. Looney, supra, and similar cases has not been overruled. It has been recently recognized. Huff v. Huff, supra.

However, the appellant’s first point has no basis in fact. It is based upon Herman Wisdom’s valuation of $25,000. That valuation was discredited. Other witnesses valued the property at $3,500 to $4,750. Its decision demonstrates the trial court accepted the latter valuation. Mueller v. Simmons, 634 S.W.2d 533 (Mo.App.1982). When related to the purchase price of $2,300, the latter valuation does not establish the consideration was so grossly inadequate as to shock the conscience within the meaning of the cases cited above. Adams v. Smith, 360 Mo. 1082, 232 S.W.2d 482 (1950); Harlin v. Nation, 126 Mo. 97, 27 S.W. 330 (1894). For an exhaustive list see Dingus, Mortgages — Redemption After Foreclosure Sale In Missouri, 25 Mo.L.Rev. 261, 263 n. 4 (1960).

The appellant’s second point is that it was prejudiced by being prevented from being present at the sale by misunderstanding, mistake or other fortuity. It cites City of St. Louis v. Peck, supra, in which it is declared:

Execution sales may be set aside upon motion of parties, not only in cases of fraud or where inadequacy in the sales price is so great as to shock the judicial conscience, but also in cases of irregularity in the conduct of the sale to the prejudice of any party having an interest in the action, or cases of accident or surprise where because of some misunderstanding, mistake, misapprehension or other fortuity, the parties are prevented from being present at the sale to protect their interests.

Id., at 682. Also see Mangold v. Bacon, supra. Or stated another way, mere inadequacy of consideration will not justify the setting aside of a judicial sale unless accompanied by some irregularity. Mueller v. Simmons, supra; Dougherty v. McKeever, supra. Irregularities that have been recognized to fall within this rule include, a mortgagor’s mistake as to the date of the sale, Huff v. Huff, supra; a misleading description of the property to be sold, Rogers & Baldwin Hardware Co. v. Cleveland Bld’g Co., supra; the sale of an excessive portion of real property, Griggs v. Miller, 374 S.W.2d 119 (Mo.1963); a sale made after the sheriff announced sales were concluded, West v. Axtell, 322 Mo. 401, 17 S.W.2d 328 (1929); and a sale at an unusual hour, Holdsworth v. Shannon, 113 Mo. 508, 21 S.W. 85 (1893); City of St. Louis v. Peck, supra.

The fact that an interested party does not attend a judicial sale does not per se establish a basis for relief. That factor must be considered in relation to all of the circumstances. If the interested party, acting without fault, failed to attend because he was misled, West v. Axtell, supra, or because of unusual circumstances, City of St. Louis v. Peck, supra, his absence is entitled to great weight. His absence due to his own negligence does not present a compelling reason for setting aside a judicial sale. Hammond v. Scott, 12 Mo. 8 (1848). “This makes a stronger case than where a party, through mistake or inadvertence of himself or agent, has failed to attend a sale.” Holdsworth v. Shannon, supra, 21 S.W. at 88. A decisive factor is the degree of prejudice to be suffered if the sale is not set aside. Mangold v. Bacon, supra. Always to be considered is the underlying need for judicial sales to be final. “A sale at some point must be final and should not easily be reopened for higher bid.” DiLeo v. Hunter, 505 S.W.2d 112, 115 (Mo.App.1974).

As noted, the evidence in this ease does not mandate a determination of substantial inadequacy of consideration or great prejudice to the appellant. The appellant was not represented at the sale because its employee who was supposed to attend was out of town and didn’t get back. “The additional factors of one bidder and, at most a mere communication problem are not the type requiring the setting aside of the sale.” Dougherty v. McKeever, supra, at 432. Considering all of the relevant factors, the trial court did not err. Its judgment is affirmed.

CROW, P.J., and HOGAN and TITUS, JJ., concur.


text:
    J.D. WILLIAMS, d/b/a Consolidated Cabs and Consolidated Cab Co., Appellants, v. CITY OF KANSAS CITY, Missouri, et al., Respondents.
    No. WD 34808.
    Missouri Court of Appeals, Western District.
    Dec. 18, 1984.
    Carl W. Bussey, Kansas City, for appellants.
    Richard N. Ward, Nordahl E. Holte, Dan G. Jackson, III, Kansas City, for respondents.
    Before KENNEDY, P.J., and DIXON and CLARK, JJ.
   ORDER

PER CURIAM:

Appeal from judgment of the Circuit Court of Jackson County denying injunc-tive relief to appellant and enjoining appellant’s operation of the taxicab business in Kansas City.

Affirmed. Rule 84.16(b).