Anderson v. Wittmeyer

834 S.W.2d 780, 1992 Mo. App. LEXIS 1087, 1992 WL 137546
CourtMissouri Court of Appeals
DecidedJune 23, 1992
DocketNo. WD 44952
StatusPublished
Cited by8 cases

This text of 834 S.W.2d 780 (Anderson v. Wittmeyer) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anderson v. Wittmeyer, 834 S.W.2d 780, 1992 Mo. App. LEXIS 1087, 1992 WL 137546 (Mo. Ct. App. 1992).

Opinion

BRECKENRIDGE, Judge.

Ruthmary Anderson, John Allen Cogs-well and Dean Kramer filed an action challenging the validity of a document purported to be the last will and testament of decedent, John E. Cogswell. Dean Kramer was dismissed as a party plaintiff on the motion of one of the defendants, First Christian Church of Independence. The matter was then dismissed for lack of subject matter jurisdiction in that Dean Kramer, a beneficiary under the challenged will, had not been joined and served as a defendant within the statutory ninety-day period. The appellants, Ruthmary Anderson and John Allen Cogswell, contend that the court below erred in its dismissal of the action, claiming that it was unnecessary to join and serve Dean Kramer as a defendant because, by entering his appearance in the action as a party plaintiff, Mr. Kramer waived the statutory requirements. Thus, the trial court did not lose jurisdiction over the action.

The judgment is reversed.

John E. Cogswell, a resident of Jackson County, Missouri, died on July 31, 1990. A document purporting to be his will, dated July 28, 1990, was admitted to probate August 6, 1990. On December 18, 1990, a petition contesting the purported will was filed by Ruthmary Anderson, John Allen Cogswell and Dean Kramer against Rozella Wittmeyer and ten other named defendants.1 Ruthmary Anderson and John Allen Cogswell were the children of the decedent. Dean Kramer, a nephew of John Cogswell’s deceased wife, was named as a beneficiary in the contested will.

On April 12,1991, First Christian Church of Independence filed a motion to dismiss [782]*782Mr. Kramer as a plaintiff on the grounds that Mr. Kramer was not an interested person within the meaning of Section 473.-083, RSMo 1986,2 and not a proper plaintiff in the action. The trial court granted the motion on May 6, 1991. Thereafter, on that same day, First Christian Church moved to dismiss the action for lack of subject matter jurisdiction. Its grounds were that Dean Kramer had not been joined and served as a party defendant during the ninety-day period and no good cause could be shown for failure to do so. The trial court granted the motion and appeal was taken from that dismissal.

Dismissal of the action by the trial court must be sustained if there is any ground supporting the motion to dismiss, regardless of whether such ground was relied on by the trial court. Cool v. Reed, 710 S.W.2d 243, 244 (Mo.App.1986). Review of the trial court’s dismissal of the action is undertaken pursuant to an abuse of discretion standard. Larson v. Larson, 818 S.W.2d 740, 741 (Mo.App.1991). In dismissing the cause, the trial court abused its discretion.

Section 473.083 governs the procedure for filing a will contest. Such section “has not been regarded as a statute of limitations in the usual sense but as a special statute applicable solely to will contest actions. Hanna & Borron, 5 Missouri Practice, § 283 (1988). It is viewed as a statute conferring jurisdiction rather than as a statute of limitations. Id. ” Burke v. Kehr, 826 S.W.2d 855, 862 (E.D.Mo.App.1992). In order to obtain jurisdiction under Section 473.083, all necessary parties must be joined. Necessary parties are those persons having an interest which would be adversely affected by not being included in the suit. Cool v. Reed, 710 S.W.2d at 246. Specifically, Section 473.083.6 mandates that the petitioner in a will contest “proceed diligently to secure and complete service of process as provided by law on all parties defendant.” Should such service not be accomplished within ninety days after the petition is filed, then the action is subject to dismissal by the trial court unless good cause is shown for such failure. Langham v. Mann, 801 S.W.2d 394, 396 (Mo.App.1990). The right to contest a will did not exist at common law; it is a creature of statute and, as such, can only be exercised in strict compliance with the requirements of the statute. Kreisel v. Wischmeier, 813 S.W.2d 346, 348 (Mo.App.1991). Despite these oft-cited principles, Missouri case law also provides for a relaxation of the rule, relying on the reasonable interpretation of the language of the statute. Donnan v. Donnan, 264 S.W.2d 318 (Mo.1954); Shaffer v. Cochenour, 569 S.W.2d 320 (Mo.App.1978).

Dean Kramer was a legatee under the will being contested and as such was a necessary party to the proceeding because his interest would be adversely affected if the will contest was successful. Lang-ham, 801 S.W.2d at 396. Rather than be listed as a party defendant in the suit, Mr. Kramer joined as a party plaintiff asking that the instrument dated July 28, 1990, be determined not to be the last will and testament of John Cogswell, deceased. Because he did not have an interest which would benefit from the will contest, Mr. Kramer did not meet the criteria for a party plaintiff. State ex rel. Cooper v. Cloyd, 461 S.W.2d 833 (Mo.1971). The motion of First Christian Church to dismiss him as a plaintiff was sustained. This occurred beyond the ninety-day period for serving parties defendant, so at that point it was not permissible for Ruthmary Anderson and John Allen Cogswell to add Mr. Kramer as a defendant. The issue before the court is whether, as a matter of law, the trial court lacked subject matter jurisdiction due to the failure to name Dean Kramer as a party defendant and serve him with summons, when Mr. Kramer had entered his appearance as a party plaintiff and was later dismissed as such.

Of particular applicability, the Shaffer case concerns a voluntary dismissal by Barbara Clowser of herself as a party plaintiff from an action challenging the will of her father. Shaffer, 569 S.W.2d at 322. Bar[783]*783bara Clowser was both an heir at law and a legatee under the contested will; as a legatee she was a necessary party to the suit. Id. She did not become a party defendant to the suit until March 11, 1977, when she filed a voluntary entry of appearance. Id. In the interim, the defendants moved to dismiss, arguing that the trial court was without jurisdiction because Barbara Clow-ser had not been joined as a necessary defendant within the prescribed statutory period. Id. The trial court dismissed the action but the appellate court reversed, predicating its decision on the purpose behind Section 473.083. The court stated:

The purpose of § 473.083 is to join all interested parties in the will contest suit. Crawford v. Bashor, supra [564 S.W.2d 323 (Mo.App.1978) ]. In our application of the statute we are to give effect to that purpose. Laswell v. Industrial Com’n of Missouri, Etc., 534 S.W.2d 613 (Mo.App.1976). We are also to interpret the language of statutes reasonably.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Atkinson v. Firuccia
567 S.W.3d 190 (Missouri Court of Appeals, 2018)
Root v. England
291 S.W.3d 834 (Missouri Court of Appeals, 2009)
Lomax v. Sewell
50 S.W.3d 804 (Missouri Court of Appeals, 2001)
Wibberg v. State
957 S.W.2d 504 (Missouri Court of Appeals, 1997)
In Re Adoption of J_____ P_____ S
876 S.W.2d 762 (Missouri Court of Appeals, 1994)
Klotz v. Pott
867 S.W.2d 714 (Missouri Court of Appeals, 1993)
C & H Distributors, Inc. v. Cloud Enterprises, Inc.
866 S.W.2d 927 (Missouri Court of Appeals, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
834 S.W.2d 780, 1992 Mo. App. LEXIS 1087, 1992 WL 137546, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anderson-v-wittmeyer-moctapp-1992.