Lee Allen Martin Plaintiff, VS. DEPARTMENT OF REVENUE, et al., Defendants.

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CASE #01CV324209

Notice of Appeal and Request for Forma Pauperis

Comes now the Appellant/Plaintiff, Lee Allen Martin, pursuant to Missouri Supreme Court Rule 81.04 and does notify the court of the appeal of judgment rendered on the the 19th day of June, 2002, as upheld in the Order of the Court on the 5th day of July 2002, in regards to Appellant/Plaintiff motion To Set Aside Default Judgment of June 19, 2002.

Appellant/Plaintiff requests that he be allowed to continue in Forma Pauperis Pursuant to Mo.S.Ct.Rule 77.03. Appellant/Plaintiff states that he has not filed income tax returns since 1997. Appellant/Plaintiff has not worked and does remain unemployed.

Appellant/Plaintiff asks the court to make such Order so as to extend the forma pauperis status of the action and that all filing fees be waived.

Parties:

1. Lee Allen Martin, Appellant/Appellant/Plaintiff, Pro Se, 7050 County Road 2810 West Plains Missouri 65775.
2. Department of Revenue, Defendant/Respondent 301 High St. Jefferson City Mo. 65101.
3. Director of Revenue, Defendant/Respondent 301 High St. Jefferson City Mo. 65101.
4. Custodian of Records, Defendant/Respondent,Carol Russell Fischer, for the Department of Revenue 301 High St. Jefferson City Mo. 65101
   1. Assistant Attorney General Keith D. Halcomb, Defendant/Respondent counsel, 207 W. High St. Jefferson City, Mo. 65101
   2. Assistant Attorney General Earl D. Kraus, Defendant/Respondent counsel, 207 W. High St. Jefferson City Mo.

Jurisdictional Statement

This is an action arising out of default judgment issued on the 19th day of June 2002 against the Appellant/Plaintiff pursuant to Mo.S.Ct.Rule 61.01 in a Petition for Declaratory Judgment Arising out of Chapter 610. The Judgment of the 19th day of June 2002 Dismissing the action, striking the pleadings, and cost asessed against the Appellant/Plaintiff pursuant to Mo.S.Ct. Rule 61.01(b)(d)(f) as imposed upon the Appellant/Plaintiff does Mis Apply the Law, Applies the Wrong Law, and is against the weight of the evidence.

The Petition for Declaratory Judgment having not been heard upon the merits the judgment is default by nature. The Final Judgment of June 19, 2002 is subject to review and reversal as it is:

1. The judgment is against the weight of the evidence:
   1. The Defendant/Respondent canceled the deposition. The transcript of the deposition, that did not take place, states the time of conclusion as 10:20 am ten minutes prior to the Notice of Deposition which required appearance at 10:30 am.
   2. The Court Reporter did disqualify pursuant to Mo.S.Ct. Rule 57.05(d).
   3. The Defendant/Respondent at no time availed themselves of the provisions of Mo.S.Ct. Rule 61.01(g) in requesting a court order for the Appellant/Plaintiff compelling any action upon the Appellant/Plaintiff other than be present at 149 Park Central Sq. Springfield Mo. at 10:30 am.
   4. The Court Reporter's response to the question from Appellant/Plaintiff: "Can you tell me what your oath says?"
      "I forgot that a long time ago, it has been 3 years since I took the oath."
      Does not rise to the level to be contumacious on the part of the Appellant/Plaintiff.
   5. The Court Reporter's self notarized affidavit in direct violation of RSMo 486.255 is a violation of said Court Reporter's Oath, RSMo 486.235.
   6. The courts Judgment on June 19, 2002 of dismissal on grounds that Appellant/Plaintiff did attempt to frustrate deposition by being rude to the Court Reporter is not grounded in fact. The evidentiary hearing of 19 June 2002, on the record, never makes a showing of rudeness. Black's Law Dictionary: Rudeness; Roughness, incivility, violence.
2. The Judgment of June 19, 2002 does Misapply the law:
   1. In that Appellant/Plaintiff at no time failed to appear for the deposition and in no way violated Mo.S.Ct. Rule 61.01(f).
   2. The sanction provisions of Mo.S.Ct. Rule 61.01 was misapplied in this action Kollmeyer v. Willis, 408 S.W. 2d 370 (Mo. App. 1966).
   3. The Defendant/Respondent at no time presented any form of prejudice in Motion for Sanctions or in testimony on the 19th day of June 2002 and never made a showing of prejudice, State ex rel. Missouri Highway and Transp. Comm'n v. Pully, 737 S.W. 2d 241, 245 (Mo. App. W.D. 1987).
   4. RSMo 610.027.5 allows that cost be on the public governmental body in actions brought pursuant to 610.010 to 610.030 RSMo, City of Springfield v. Events Publishing Co. 951 S.W.2d 366.
3. The Judgment of June 19, 2002 does Apply the wrong law:
   1. The Appellant/Plaintiff questioning the Court Reporter as to her qualification is protected speech under the 1st Amendment of the Constitution of the United States of America, Art. 1 sec. 8 of the Missouri Constitution, and required by Mo.S.Ct. Rule 57.07(d)(2), Fed. Rule of Civil Procedure 32(d)(2).
   2. The provisions of 610.010 to 610.030 are remedial upon the public governmental body. Black's Law Dictionary: Remedial laws or statutes: "...Statutes which afford a remedy, or improve or facilitate remedies already existing for enforcement of rights and redress of injuries. Chappy v. Labor and Industry Review Com'n App., 128 Wis2d 318, 381 N.W.2d 552, 556.
   3. It is well established Judgments by default are not favored 49 C.J.S. Judgments sec. 187, p. 326, n. 24(1947). "The entry of a default judgment against a party litigant is a harsh and drastic action" 47 Am Jur 2d Judgments sec 1154, p. 185 (1969).
   4. Default Judgment: "...Judgments entered under statutes or rules of court, for want of affidavit or defense, plea, answer, and the like, or for failure to take some required step in the cause." Black's Law Dictionary, 6th edition p. 843

Wherefore, as the Court of Division 1 of the 19th Judicial Circuit for the State of Missouri has abused the discretion of the court the Western District Court of Appeals has jurisdiction pursuant to Art.5 Sec. 3 of the Missouri Constitution. As the issues are the interpretation and application of the Missouri Supreme Court Rules, and the Statutes of the State of Missouri. As the Judgment of Dismissal on the 19th day of June 2002 is against the weight of the evidence, does mis-apply the law, and does apply the wrong law. As the Appellant/Plaintiff did file a Mo.S.Ct. Rule 75.01 Motion to revisit the error on the part of the trial court, and trial court did take to deny the Appellant/Plaintiff 75.01 Motion on the 5th day of July, 2002. The Judgment of Dismissal of June 19, 2002 does render finality to the Petition for Declaratory Judgment Arising out of Chapter 610 in default manner. Appellant/Plaintiff must request the filing of Notice of Appeal pursuant to Mo.S.Ct. Rule 81.04 and granting of forma pauperis pursuant to Mo.S.Ct. Rule 77.

Respectfully Submitted

Lee Allen Martin
7050 County Road 2810
West Plains
Missouri 65775

CERTIFICATE OF SERVICE

I hereby certify this pleading was served upon all attorneys of record for each of the parties to this action and All parties not represented by counsel in the following manner:
[ ] By delivering a copy to them.
[ ] By leaving a copy at their office with the clerk.
[ ] By leaving a copy at them office with an attorney associated with them.
[ ] By mailing a copy to them as prescribed by law.
[ ] By faxing a copy to them.
______________day of __________________, ______

So certified: _____________________________

Lee Allen Martin