Arnett v. Keith

• Citation: 582 S.W.2d 363
• Decision Date: 29 May 1979
• Docket Number: 10431,Nos. 10423,s. 10423
• Parties: Carl A. ARNETT and June Arnett, Plaintiffs-Respondents, v. C. E. KEITH and Marie Keith, Defendants-Appellants. Carl A. ARNETT, Plaintiff-Respondent, v. C. E. KEITH, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 363

582 S.W.2d 363

Carl A. ARNETT and June Arnett, Plaintiffs-Respondents, v. C. E. KEITH and Marie Keith, Defendants-Appellants.

Carl A. ARNETT, Plaintiff-Respondent, v. C. E. KEITH, Defendant-Appellant.

Nos. 10423, 10431.

Missouri Court of Appeals, Southern District.

May 29, 1979.

Joseph A. Bohrer, John D. Compton, Neale, Newman, Bradshaw & Freeman, Springfield, for defendants-appellants.

William H. McDonald, David L. Smith, Woolsey, Fisher, Clark, Whiteaker & Stenger, Springfield, for plaintiff-respondent.

Before HOGAN, P. J., STONE, Acting Senior Judge, and GRIMM, McHANEY and STEELMAN, Special Judges.

HOGAN, Presiding Judge.

These appeals arise out of a single transaction the sale of a business called the Urbana Sales Barn, and the land on which the business is located. The sale was consummated by the execution of two contracts, one written, the other oral. The written contract is a contract for a deed to a one-half interest in a tract of land on which the business is located. The oral contract covered the sale of the "business," ¹ plaintiff Carl Arnett's interest in the equipment used in the business, the "goodwill" of the business, and possibly a restaurant.

Plaintiffs declared first upon a check in the amount of $12,500, which, according to their proof, represented the balance due upon the oral contract. A further action was filed upon the written contract. In the action upon the written contract, plaintiffs incorporated the contract by reference, averred that defendants were in default, and prayed an order declaring the earnest money ($5,000) forfeit, the contract void by reason of default, an allowance of $830 per month for the 7-month period defendants had held over, and an order quieting their title to the realty described in the contract for deed.

Upon plaintiffs' motion, the two cases were consolidated. On the day finally set for trial, defendant C. E. Keith appeared without counsel. Observing that he had several times advised Mr. Keith to be prepared, the court proceeded to trial. Plaintiffs' evidence was presented by counsel. Defendant C. E. Keith, with some assistance from the trial court, defended himself. After hearing evidence, the trial court granted plaintiffs the relief for which they had prayed. Defendants Keith now appeal. They raise two points:

1) The trial court erred in compelling them to proceed to trial because they were not notified of their counsel's withdrawal until nine days before trial, were not allowed a reasonable time to secure counsel, and were therefore deprived of due process of law.

2) The trial court erred in entering judgment against plaintiffs based upon a rental value of the real property in excess of the amount agreed to in the contract for deed.

We review only those errors properly developed in the defendants' brief. Pruellage v. DeSeaton Corporation, 380 S.W.2d 403, 405(3) (Mo.1964); White v. Kuhnert, 207 S.W.2d 839, 840(1) (Mo.App.1948). We are not convinced that any real "due process" question is involved on this appeal, and we decline to consider the defendants' argument that they were deprived of a constitutionally protected right. The general rule is that constitutional issues must be raised at the earliest opportunity consistent with good pleading and orderly procedure, Christiansen v. Fulton State Hospital, 536 S.W.2d 159, 160(1) (Mo. banc 1976); Pruellage v. DeSeaton Corporation, Supra, 380 S.W.2d at 405(2), and the notion that a constitutional question may inhere in a case has been consistently rejected. Christiansen v. Fulton State Hospital, supra, 536 S.W.2d at 160(3). The judgments complained of were entered June 12, 1976. Defendants obtained most competent counsel in time to appeal on July 9 and 16, 1976. With deference, we believe that if counsel were convinced there was error of constitutional dimension in compelling defendants to go to trial, that point might have been raised in the trial court by an adjunctive motion. Cf. J. R. Watkins Company v. Hubbard, 343 S.W.2d 189 (Mo.App.1961); In re Jackson's Will, 291 S.W.2d 214 (Mo.App.1956).

We view the question before us as requiring a determination whether the trial court abused its discretion. The fact that an attorney withdraws from a case does not give a party an absolute right to a continuance. Harms v. Simkin, 322 S.W.2d 930, 933(4) (Mo.App.1959); Annot., 48 A.L.R.2d 1155, 1157-1159, § 2 (1956). The decision whether to grant or deny a continuance rests largely in the discretion of the trial court, and on appeal, every intendment is in favor of the trial court's ruling. Harms v. Simkin, supra, 322 S.W.2d at 933; Savings Finance Corp. v. Blair, 280 S.W.2d 675, 678(7) (Mo.App.1955). The defendants make much of the fact that their attorney of record filed an application to withdraw only nine days before trial, and that motion was never formally ruled. Nevertheless, defendant C. E. Keith said he knew five days before trial that his counsel had withdrawn, and what is much more illuminating, testified that he had "quit going" to see his attorney, inferably some time before the trial. Also revealing, in our view, is Mr. Keith's testimony that he had given his attorney of record a personal check for $5,000, but did not know to which contract, the written or oral contract, the check had been credited.

In addition, at the time the cases were called for trial, the trial court stated and we readily accept his statement that he had advised Mr. Keith to be prepared on three different occasions prior to trial. The trial court also indicated that he had been in contact with Mr. Keith's attorney and that the attorney had indicated he could obtain no cooperation from Mr. Keith. While we are not prepared to agree with plaintiffs' counsel that the defendants deliberately sought to stall as long as they could, the record indicates singular inattention and lack of interest on...