Chowning v. Magness, 16978
| Decision Date | 19 July 1990 |
| Docket Number | No. 16978,16978 |
| Citation | 792 S.W.2d 438 |
| Parties | Joe CHOWNING, Plaintiff-Respondent, v. J.T. MAGNESS, Defendant-Appellant. . Division Two |
| Court | Missouri Court of Appeals |
Timothy E. Gammon, Daniel, Clampett, Lilley, Dalton, Powell & Cunningham, Springfield, for defendant-appellant.
Jerry L. Redfern, Paul G. White, Richard L. Schnake, Neale, Newman, Bradshaw & Freeman, Springfield, for plaintiff-respondent.
This is an appeal of an election contest brought pursuant to § 115.526. 1 Appellant and respondent are candidates for nomination to the office of associate circuit judge of Taney County, Missouri. The date of the primary election at which a candidate will be nominated is August 7, 1990. Respondent brought this action challenging the qualifications of appellant to hold the office sought. Respondent alleged that appellant does not meet the constitutional and statutory qualifications for the office for the reason that appellant will not have resided in Taney County for one year prior to November 6, 1990, the date of the forthcoming general election at which the associate circuit judge of Taney County, Missouri, will be elected. 2
This case was tried in the Circuit Court of Webster County, Missouri. 3 The trial court sustained the challenge and entered judgment declaring appellant disqualified and ordering appellant's name not to be printed on the official ballot for the August 7, 1990, primary election. This court affirms.
This case was tried without a jury and is, therefore, reviewable under Rule 73.01. That review is governed by the constraints imposed in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The judgment of the trial court must be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Id. In considering whether the judgment of the trial court is "against the weight of the evidence," this court may exercise its power to set aside the judgment of the trial court only with caution and only if it possesses a firm belief that the judgment is wrong. Id. In undertaking this review, this court is mindful of the opportunity of the trial court to have judged the credibility of the witnesses and gives due regard thereto. Rule 73.01(c)(2).
The record on appeal includes some 365 pages of testimony and 94 exhibits. At the conclusion of the testimony, the trial court stated that there was a question of credibility and concluded that appellant's position was "somewhat less than credible." There was strong documentary evidence casting considerable question upon appellant's claim to have been a resident of Taney County during the prescribed period. That evidence included: signed personal property assessments in which appellant declared his residence to be in Springfield, Greene County, Missouri, and in which he declared the telephone number at his Springfield abode as his "home" telephone number; driver's license renewal form, signed by appellant, declaring appellant's residence to be in Springfield, Greene County, Missouri; motor vehicle insurance declarations showing appellant's address as Springfield, ...
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