Opinion
No. 7133.
February 26, 1953.
APPEAL FROM THE SCOTT COUNTY CIRCUIT COURT, D. W. GILMORE, J.
J. Grant Frye, Cape Girardeau, for appellants.
William B. Sharp, Malden and Robert A. Dempster, Sikeston, for respondents.
This was a proceeding under Section 512.120 RSMo 1949, V.A.M.S., and was submitted to this Court on October 29, 1952, upon the briefs of appellants and respondents, without oral argument.
On December 3, 1949, appellants, sometimes referred to as plaintiffs, or contestants, filed their petition in Dunklin County, Missouri, challenging the supposed will of Josiah M. Hammonds.
On April 27, 1950, defendants-proponents filed their answer to such petition. On October 9, 1950, defendants-proponents took a change of venue from Dunklin County to Carter County. The case was tried by the Judge of the Carter County Circuit Court and a jury on December 4, 1950, resulting in a verdict for plaintiffs-contestants. By its verdict the jury found and held that the purported will of Josiah M. Hammonds, executed on May 20, 1909, was not the last will and testament of said Josiah M. Hammonds, and judgment was rendered accordingly.
On December 11, 1950, defendants-proponents filed their motion for a new trial. On February 23, 1951, the verdict of the jury and judgment thereon were set aside by the trial judge of the Carter County Circuit Court. The trial judge gave as his reasons for sustaining said motion that there was insufficient evidence offered to show that testator was of such mental capacity as would preclude his drawing of a will, and that he was not subjected to such undue influence as would invalidate the will. The trial judge added the following:
"The Court further finds that the Will in question to be the last Will and Testament of J. M. Hammonds deceased."
The statement of the case says that no after-trial motion was filed in the Circuit Court of Carter County. On October 29, 1951, plaintiffs-contestants took a change of venue and the case went to the Circuit Court of Scott County. This was long after the time when plaintiffs could have taken an appeal from the order of the Judge of the Carter County Circuit Court granting defendants a new trial.
On April 14, 1952, in the Circuit Court of Scott County, the defendants-proponents filed a motion to dismiss plaintiffs' case, because, on February 23, 1951, the Circuit Court of Carter County entered its judgment finding that the will in question was the last will and testament of J. M. Hammonds, deceased, and that such judgment was "res adjudicata," and binding on all the parties to this action and that the Circuit Court of Scott County was without jurisdiction of the parties or of the subject-matter involved in the case. Such motion was sustained on May 15, 1952. On May 21, 1952, plaintiffs-contestants appealed to this Court.
The trial judge of the Carter County Circuit Court had sustained defendants' motion for a new trial as follows:
"On February 23, 1951, amended answer to Count No. 2 filed by defendants named therein. Hearing on motion for new trial before the court. Motion sustained for reasons Court finds that there was insufficient evidence offered to show testator was of such mental capacity as would preclude drawing of Will or that he was subjected to such undue influence as would invalidate the will.
"The Court further finds that the Will in question to be the last Will and Testament of J. M. Hammonds deceased."
He ruled that plaintiffs-contestants failed to offer testimony that testator was of such mental capacity as to preclude his drawing a will and that testator was not subjected to undue influence, such as would invalidate the will. He granted a new trial; but no appeal was taken.
In a will contest, the trial court is limited to two things: He can either grant a new trial to the loser on the motion for new trial, or he can grant the loser an appeal to the appropriate appellate court. He granted the loser a new trial, but contestants did not take an appeal. Instead of taking an appeal plaintiffs-contestants took a change of venue to the Circuit Court of Scott County. There, on the motion of defendants-proponents, the Circuit Court of Scott County sustained defendants' motion and dismissed the case, on the ground that the matter was of "res adjudicata" and taxed the costs to plaintiffs-contestants. From that order of the Circuit Court of Scott County, plaintiffs have appealed to this Court.
In Section 539, Mo.R.S.A., as reported in the Revised Statutes of Missouri for 1939, and as carried forward in Section 468.590, V.A.M.S., Vol. 26, page 523, it is provided in will contests as follows:
"The verdict of jury or the finding and judgment of the court shall be final, saving to the court the right of granting a new trial, as in other cases, and to either party an appeal, in matters of law, to the supreme court, or to the St. Louis, Springfield and Kansas City courts of appeal."
As plaintiffs did not appeal from the order of the Circuit Court of Carter County, the Circuit Court of Scott County could make no order in the case, other than to grant plaintiffs another trial. The statute above quoted, which appears to be applicable only to will contests, has been the law in almost identical language since the case of Dickey v. Malechi, 6 Mo. 177, loc. cit. 185, decided in 1839.
Since the Circuit Court of Scott County had no power to dismiss the case, there is nothing left for this Court to do, except to reverse such order and to direct the Circuit Court of Scott County to set aside its order of May 15, 1952, and to grant plaintiffs another trial.
It is so ordered.
VANDEVENTER, P. J., concurs in separate opinion hereto attached.
McDOWELL, J., dissents in separate opinion hereto attached.
The judgment of the Circuit Court of Scott County having been reversed in an opinion of this Court, filed February 26, 1953, the opinion and the case are ordered by this Court to be transferred to the Supreme Court of Missouri, under Section 10, Article V of the Constitution of Missouri for 1945, because of the general interest involved in the question considered and decided by this Court, and for the purpose of having the Supreme Court of this State re-examine the existing law involved in Section 539, RSMo 1939, Section 468.590 RSMo 1949, V.A.M.S., as applied to contests in will cases.
There is an additional reason why this cause must be reversed and remanded. The petition was filed in two counts. An answer was filed to Count II and later an amended answer. When the cause went to trial by a joint application of the parties, the Court made an order to try Count I separately. When the various changes of venue were taken, Count II followed Count I to Scott County. (See Sec. 508.170, V.A.M.S.) According to the record, the Circuit Court of Scott County lost sight of Count II and dismissed the whole cause. Count II is still pending in that court.
I believe that the trial court of Carter County would have had jurisdiction to have set the jury's verdict aside and enter a judgment for the defendants-proponents of the will, Sec. 510.290, V.A.M.S., had it not been for Section 468.590, V.A.M.S., but that Section provides that the jury's verdict "shall be final", saving to the trial court the right to grant a new trial and if that is not done, the dissatisfied party may appeal.
I do not think that Sec. 468.590, V.A.M.S. was repealed by the new Code. Section 2 of the Code of Civil Procedure, 506.010 V.A.M.S., provides that that code shall be applicable to all proceedings of a civil nature, "unless otherwise provided by law". It has always been held that the statutory proceedings in a will contest are sui generis, "a code unto itself" and must be strictly construed because it is in derogation of the common law. Byrne v. Byrne, Mo.Sup., 181 S.W. 391. Braeuel v. Reuther, 270 Mo. 603, 193 S.W. 283, L.R.A. 1918A, 444. Annotation Cases, 1918B, 533. Campbell v. St. Louis Union Trust Co., 346 Mo. 200, 139 S.W.2d 935, 129 A.L.R. 316. McGrary v. Michael, 233 Mo. App. 797, 109 S.W.2d 50.
Indeed, it has been held that it is not even necessary for the court to render a judgment on the jury's verdict because of its finality. Gordon v. Burris, 141 Mo. 602, 43 S.W. 642. Bensberg v. Washington University, 251 Mo. 641, 158 S.W. 330.
In Section I of the code of Civil Procedure, a multitude of statutes are specifically repealed but none of them refer to Section 468.590, V.A.M.S., which was then Section 539, RSMo 1939. I do not believe that Section is repealed by implication and if it was not, there was only one thing the trial court of Carter County could do after the jury's verdict and that was to grant a new trial. If that was refused, either party could appeal, but if sustained, the cause remained on the docket for a re-trial.
The Supreme Court of Missouri said in a case as late as 19948, Donati v. Gualdoni, 358 Mo. 667, 216 S.W.2d 519, 521:
"In this case, an action to contest a will, the jury's verdict on such conflicting evidence was final, save and except for the exercise of the right or power of the trial court to grant a new trial, as in other cases."
I concur in the opinion of Judge BLAIR.
I cannot concur in the majority opinion in this case, There is no dispute as to the question involved and the facts relating thereto. This was a will contest case, tried by jury and a verdict returned finding the instrument was not the will of the deceased. The trial court refused defendants' instruction asking for a directed verdict because there was evidence to sustain the petition. There was no after-trial motion filed for judgment but the question of the sufficiency of the evidence was raised in the motion for new trial.
The trial court sustained the motion for new trial because there was insufficient evidence to show that the testator was of such mental capacity as would preclude the drawing of a will and also finding that there was no undue influence as would invalidate it and then entered this judgment:
"The court further finds that the Will in question to be the last Will and Testament of J. M. Hammonds deceased."
There was no appeal from this judgment.
A change of venue was taken to Scott County, Missouri, where a motion to dismiss was sustained by the trial court because the matter was res judicata.
So the question presented to us is, did the trial court have power to render judgment in a will contest case where the matter of the sufficiency of the evidence was raised in a motion for new trial and where there was no after-trial motion for a directed verdict filed?
The majority opinion is based upon Section 468.590 RSMo 1949, V.A.M.S., which reads as follows:
"The verdict of jury or the finding and judgment of the court shall be final, saving to the court the right of granting a new trial, as in other cases, and to either party an appeal, in matters of law, to the supreme court, or to the St. Louis, Springfield and Kansas City courts of appeal."
It specifically holds that the trial court was limited to granting of a motion for new trial in a will contest under this section of the statute and, therefore, was without authority to render judgment establishing the will under a motion for new trial. In this holding, the majority opinion is in error, in my judgment.
Supreme court rule 3.02(a) provides:
"Except as otherwise expressly provided by Section 145 of the Civil Code or by rules under said Section 145, whenever any existing or future statute refers to or adopts the provisions of the Code of Civil Procedure, either generally or by specific reference, as to the manner or time within which a procedural act shall be performed, and this regardless of whether the reference may be to the `existing,' to `present' procedure, or by other like references, such references shall be deemed to refer to the relevant provisions of the Civil Code. If any special procedural statute refers to or adopts the provisions of the Code of Civil Procedure, and also refers to a particular method of procedure which has been changed by the Civil Code, then and in that event, the substitute procedure prescribed by the revised Civil Code shall be employed."
Section 510.290 RSMo 1949, V.A.M.S., of the Civil Code reads:
"Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Within ten days after the reception of a verdict, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; or if a verdict was not returned, such party, within ten days after the jury has been discharged, may move for judgment in accordance with his motion for a directed verdict. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. If a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned the court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial."
Section 468.590 was originally enacted many years ago and was in effect when the old Code of Procedure was operating, that is, prior to the enactment of the new Civil Code.
Under the old Civil Code a trial court could not enter a directed judgment after trial and was limited to granting of a new trial. The trial court could direct a verdict at the close of the evidence under the old Civil Code, but, if the motion for directed verdict was overruled, the matter was not held in abeyance with jurisdiction in the trial court to direct a judgment on an after-trial motion.
Said procedural limitations were removed by the new Civil Code, section 510.290 RSMo 1949, V.A.M.S., and the trial court was given jurisdiction and authority by after-trial motion, either a motion for new trial or a motion for directed verdict, to set aside the judgment entered in accordance with the motion for directed verdict. The appellate courts of this state have construed this section as authorizing a directed judgment even in the absence of a motion for directed verdict, during the trial, in order to avoid a miscarriage of justice.
In Carr's Missouri Civil Procedure, Vol. I, page 867, Sec. 812, the law is stated:
"Under the prior practice if a demurrer to the evidence at the close of all the evidence was overruled the trial court realizing on motion for new trial that error had been committed in so doing could not then sustain the demurrer to the evidence and enter judgment contrary to the verdict. The trial court's only authority was to grant a new trial and re-try the case. Under the beneficial provisions of Code Sec. 113 the trial court, either on motion for new trial or on motion to set aside the verdict and judgment (treated as a motion for new trial under Missouri Supreme Court Rules 3.23 and 3.24), if the evidence is insufficient to sustain the verdict, is not required to grant a new trial (with the attending delay and extra expense) but may enter a judgment for the opposite party notwithstanding the contrary verdict.
"* * * A separate motion to set aside a verdict and judgment though proper is not necessary as the same questions may be presented to the trial court and preserved for review in a motion for new trial. In those cases where a motion for a directed verdict is made at the close of the evidence and overruled and the trial results in a hung jury, which is discharged, a motion for judgment (whether designated a new trial motion or otherwise) within ten days after the jury is discharged is necessary to authorize the trial court to pass on the law question as to the sufficiency of the evidence to sustain the submission of the case to a jury and, if not, to enter a judgment for the party claiming that the evidence is insufficient to support a verdict and judgment."
In the case at bar, in the trial of count I of the petition, at the close of all of the evidence, the court was asked, by written instruction, to direct a verdict against the contestants of the will. The motion for a new trial, under a number of different headings, raised the question of the sufficiency of the evidence to support the verdict. The trial court sustained the motion holding that the evidence was insufficient to sustain the verdict and directed a judgment sustaining the will.
Under the law, as above stated, where the question of the sufficiency of the evidence to sustain the judgment was raised in the motion for new trial the trial court was vested with authority, not only to grant a new trial, but to render judgment for the defendants. This was a final judgment and, unless appealed from, became res judicata. There was no appeal in this case, therefore, the questions involved in the trial under count I of the petition were finally adjudicated and, the trial court's judgment, in dismissing this count, was correct and should be sustained.
It would seem that section 510.290, RS Mo 1949, V.A.M.S., Section 113, Laws of Missouri 1943, is to be construed with section 468.590 RSMo 1949, V.A.M.S., and, so construed, necessarily gives the right to the trial court, in a will contest action, to enter a directed judgment on a motion for new trial. The language used in section 468.590, "as in other cases" clearly indicates that will contest actions shall be treated as other civil actions and, therefore, comes within the scope of the new Civil Code.
Under Rule 3.02 of the Supreme Court the new Civil Code applies to will contest cases. Certainly there is nothing inconsistent between section 468.590 and code section 510.290. The code section merely enlarges the prior section on a procedural matter. The issue in a will contest case in the circuit court is to try the validity of a paper asserted or denied to be a will. Miller v. Munzer, Mo.App., 251 S.W.2d 966.
In Wright v. Stevens, Mo.Sup., 246 S.W.2d 817, it was held that the trial court, in a will contest case, can direct a verdict for either party when the evidence is not sufficient to make a jury case. Vaughn v. Vaughn, Mo.Sup., 221 S.W.2d 170; Adams v. Simpson, 358 Mo. 168, 213 S.W.2d 908.
For the reasons herein set out, I am of the opinion that the trial court, in a will contest action under code section 510.290 RSMo 1949, V.A.M.S., can direct a judgment on an after-trial motion for new trial the same as it can do during trial on a motion for directed verdict. Therefore, the majority opinion is in error in holding that the trial court, in the case at bar, by virtue of the statute cited, could only grant a new trial.
I believe the judgment of the trial court, on count I of the petition, should be sustained.