text:
    STATE of Missouri, Respondent, v. Richard HERRON, Appellant.
    No. 49867.
    Supreme Court of Missouri, Division No. 1.
    March 9, 1964.
    Richard Herron, pro se.
    Thomas F. Eagleton, Atty. Gen., Paul N. Chitwood, Asst. Atty. Gen., Jefferson City, for respondent.
   HOLLINGSWORTH, Presiding Judge.

This is a proceeding brought by defendant under S.Ct. Rule 27.26, V.A.M.R., 4 RSMo 1959, p. 4924, to vacate and set aside a sentence of imprisonment imposed upon him for the crime of robbery in the first degree and under which sentence he is now imprisoned in the State Penitentiary. Denied the relief sought, he has appealed to this court.

Upon trial by jury in the Circuit Court of Mississippi County, at which he was represented by counsel, defendant was found guilty of the crime of robbery in the first degree of one J. C. Happe and his punishment was assessed at imprisonment in the State Penitentiary for a term of fifty years. See §§ 560.120 and 560.135 RSMo 1959, V.A.M.S. (to which revision all statutory references herein are made). Following rendition of judgment and imposition of sentence in accordance with the verdict, defendant perfected his appeal to this court, where, on review, the judgment was affirmed. State v. Herron, Mo.Sup., 349 S.W.2d 936.

The pro se motion filed by defendant to vacate and set aside the judgment rendered in the trial court and affirmed on appeal by this court is quite illiterate and frequently so incoherent as to defy understanding of the meaning intended. It is clear, however, that it sufficiently, among other things, alleges: (1) that the complaint upon which defendant was arrested and thereafter ordered held for trial in the circuit court was insufficient; (2) that he had ineffective assistance of counsel and was deprived of a fair trial because of the youth and inexperience of the attorney who presented himself to and did represent defendant when an attorney theretofore designated by the trial court to represent him did not appear on the day the case came on for trial; (3) that the prosecuting attorney and sheriff threatened that they would see that he was given the death penalty, following which defendant made a “supposed” confession; and (4) that he was denied use of the trial transcript in preparing the instant motion.

The transcript of the files and records certified here on this appeal shows that on the 12th day of September, 1962, the trial court permitted defendant, as an indigent person, to file the motion to vacate and set aside the sentence imposed upon him for the crime of robbery; and that upon examination of the motion and the files and records of the case the trial court was satisfied that defendant was not entitled to the relief sought and denied his motion without hearing.

Defendant’s contention that the complaint filed against him was void and did not lawfully warrant his arrest is predicated upon the fact that it was signed by the prosecuting attorney, who, defendant alleges, was not a lawful “complaining witness” within the meaning of § 544.020, which reads: “Whenever complaint shall be made, in writing and upon oath, to any magistrate setting forth that a felony has been committed, and the name of the person accused thereof, it shall be the duty of such magistrate to issue a warrant * * *.” He insists that there is no showing that the prosecuting attorney was a “credible witness” having knowledge of the facts.

It is not necessary that the prosecuting attorney have firsthand knowledge of the crime alleged in order to be qualified to make the complaint. S.Ct. Rule 21.08. See also State on inf. McKittrick v. Wymore, 345 Mo. 169, 132 S.W.2d 979, 987 [15, 16]; State v. Thomas, 353 Mo. 345, 182 S.W.2d 534, 539 [4]. Moreover, the record is clear that following arrest (and, we may assume, preliminary examination under § 544.420 or waiver thereof under § 544.250 — the record does not show) defendant, as provided by § 544.250, was charged on information filed in the circuit court by the prosecuting attorney with the offense charged in the complaint filed in the magistrate court and that thereafter defendant, upon arraignment in open court with his counsel present, entered plea of not guilty and announced ready for trial. In so doing, he waived the herein alleged invalidity of the complaint upon which the warrant for his arrest was issued. State v. Richardson, Mo., 347 S.W.2d 165, 169, cert. den. 83 S.Ct. 953, 372 U.S. 954, 9 L.Ed.2d 978.

Defendant’s contention that he did not have effective assistance of counsel and did not therefore receive a fair trial presents a vexing problem, due, in part at least, to the confusing state of the record in the robbery case. His contention in that regard stems from the fact that the trial court appointed Honorable Warren E. Hearnes, an experienced trial lawyer, to represent defendant. But, when the case came to trial Mr. Hearnes’ associate, Mr. James E. Spain, who at that time had been admitted to the Bar less than two months, alone appeared for and represented defendant throughout the trial and, following defendant’s conviction, prepared and filed defendant’s motion for new trial and thereafter signed and filed defendant’s notice of appeal to this court.

A duly certified photostatic copy of the minutes entered by the trial judge and made a part of the transcript herein filed, to the extent here material, shows as follows:

“9-13-1960 — Comes now State by pros. atty. Def. in person custody of Sheriff, without counsel. Court finds Def. is unable to retain counsel and appoints Warren E. Hearnes to represent the Defendant.
“10-11-1960 — Set for trial on October 19, 1960. Venire facias for 10 jurors.
“10-19-1960 — Comes now State by pros. atty. Def. in person and by his retained attorney James Spain. Defendant formally arraigned ‘not guilty’
“Parties announce ready for trial. Jury panel sworn and questioned— Scratched — selected.
“Jury sworn to try case.”

A certified copy of the judgment and sentence rendered on November 8, 1960, recites in material part:

“Now at this time comes the State by Roderic R. Ashby, Prosecuting Attorney, also comes the defendant herein, in person, in the custody of the Sheriff of this County, and in the presence of James E. Spain, his attorney, in open Court, the said James E. Spain being associated with Warren E. Hearnes, a member of the bar of this Court, who has heretofore been appointed by the Court to represent the defendant; and the defendant, having had reasonable time and opportunity to consult with his attorney and with friends before entering upon the trial of this case, is now informed by the Court that he was tried before a jury on October 19th, 1960 said trial resulting in a verdict of guilty of robbery in the first degree and that his punishment was assessed at 50 years and being now asked by the Court if he has any legal cause to show why Judgment should not be pronounced against him according to law, and still failing to show such cause, it is therefore sentenced, ordered and adjudged by the court”, etc.

In the motion herein filed, defendant alleges that at “no time did said Warren E. Hearnes contact” him but that instead Mr. Hearnes assigned the defense of the case to his partner, Mr. Spain; that if Mr. Hearnes had represented defendant as ordered he (defendant) would have been afforded the same consideration as was his co-defendant, Raymond Herron, who, on change of venue to Cape Girardeau County “was allowed by the same prosecuting attorney * * * to plead guilty to a charge of stealing over fifty dollars” and was sentenced to imprisonment for a term of eight years; that at no time did defendant hire Mr. Spain as his attorney; and that Mr. Spain was “just out of law school and not versed in law” as was Mr. Hearnes; and that Mr. Spain did not cause to be subpoenaed or interview or place upon the witness stand in behalf of defendant certain witnesses whose names defendant allegedly furnished to him, thereby depriving defendant of a just and fair trial.

Defendant’s motion further states: “Movant states that before his trial that the Sherriff and the prosecuting Attorney on many occassions, Reminded the movant that they would see that the movant was given the death sentence. A Confession was supposed to be made by the movant in the sherriff office. The Prosecuting Attorney in company of Jane Sisk, and Sam E. Story came to the Jail building with A tape Recorder and was trying to get the movant to make A statement, Saying that the same was to be used against the Co-Defendant in this cause.” In connection with the foregoing allegation, we note from the transcript that as a part of the State’s case in chief a statement admittedly signed ,by defendant was offered by the State and, without objection, admitted in evidence, which, among other things, states: “I * * hit Mr. Happe and they, Raymond & Betty were right behind me. I hit him with a ■peice. of pole, it was green and weighed about three or four pounds. Mr. Happe was all hunkered down on his knees and I hit him right on top of his head. When I hit him, he fell down and I started walking off and Raymond and Betty started going through his pockets.” But, when defendant testified in his own behalf at the trial, he stated: “Q What did you hit Mr. Happe with? Was it a tire tool? A I did not hit Mr. Happe, sir. Q Or a pole? A I did not hit him. I plead guilty to that to try to protect my brother on that.” The significance, if any, of this phase of the trial proceedings in determining whether defendant had effective assistance of counsel at the trial is not ascertainable from a mere examination of the files and records in the instant proceeding; it might become meaningful upon hearing of the motion on its merits.

In his brief filed herein, defendant also states that he went to trial believing that Warren E. Hearnes, a reputable and experienced lawyer, was going to defend him; that, being illiterate, feeble minded and unfamiliar with courtroom procedure, defendant did not know, when Mr. Spain alone appeared in his behalf, that the court had not appointed Mr. Spain to represent him and that he (defendant) did not know how to get rid of Mr. Spain; and that, believing he had to go to trial with Mr. Spain as his attorney, he made no protest.

This court (as perhaps every court vested with jurisdiction of felony cases) too often has occasion to review what eventually proves to be groundless accusations of “ineffective assistance of counsel”. But such charges, when made and not so patently without foundation as conclusively to demonstrate their want of merit, must be heard by the trial court in accordance with the provisions of Rule 27.26, and the proceedings of the hearing adequately preserved for appellate review as authorized by law. State v. Moreland, Mo., 351 S.W.2d 33, 35 [1] [2, 3] [4],

Summed up, the basic facts are these: Defendant was placed on trial for the capital offense of robbery in the first degree by means of a dangerous and deadly weapon. See •§ 560.135. The trial court, upon showing of defendant’s indigency, very properly appointed an experienced and seasoned trial lawyer to represent him. However, when the case came.to trial that task, for some reason not made clear in the record, was assumed by Mr. Spain. Insofar as the record shows, Mr. Spain actively applied himself to that task. Defendant, however, here charges him with ineffective assistance, which defendant contends directly resulted in his being unjustly convicted or, at least, in his receiving an unjustly long sentence of imprisonment. The accuracy or inaccuracy of defendant’s contention obviously is of material import in determining whether defendant in fact had effective assistance of counsel within the meaning of the due process clauses of both the State and Federal Constitutions. In re Goodwin, Mo, 359 S.W.2d 601; 23 C.J.S. Criminal Law § 982, pp. 967-978; Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158; Cofield v. United States, 9 Cir, 263 F.2d 686, 688-689 [1, 2] [3]; Adams v. United States, 95 U.S.App.D.C. 354, 222 F.2d 45, 47 [5-7].

Consequently, we are constrained to hold that the order denying, without hearing on its merits, the motion to vacate and set aside the sentence imposed upon defendant in the robbery case should be and is set aside, to the end that the trial court may cause notice of said motion to be served on the prosecuting attorney and the motion to be heard on its merits; that defendant be granted a writ of habeas corpus ad tes-tificandum (as prayed in his motion) ; and that he have such other process as may be necessary to a full hearing of the motion on its merits.

With respect to the hearing of said motion, we note that it is a civil rather than a criminal proceeding, State v. Smith, Mo., 324 S.W.2d 707, 712; Gershon v. United States, 8 Cir., 243 F.2d 527, and that defendant is not entitled as a matter of right to counsel solely’by reason of indigency. But, if the court, in its discretion, should determine that due to ignorance or mental incapacity of defendant he is unable understandingly to present said motion, and that the ends of justice would be served only by appointment of counsel, such action may be taken. Fay, Warden, v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837; Townsend v. Sain, Sheriff, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770. In the recent case of Sanders v. United States, 373 U.S. 1, 22-23, 83 S.Ct. 1068, 1081, 10 L.Ed.2d 148, 165, the U. S. Supreme Court observed:

“Finally, we remark that the imaginative handling of a prisoner’s first motion would in general do much to anticipate and avoid the problem of a hearing on a second or successive motion. The judge is not required to limit his decision on the first motion to the grounds narrowly alleged, or to deny the motion out of hand because the allegations are vague, conclusional, or inartistically expressed. He is free to adopt any appropriate means for inquiry into the legality of the prisoner’s detention in order to ascertain all possible grounds upon which the prisoner might claim to be entitled to relief. Certainly such an inquiry should be made if the judge grants a hearing on the first motion and allows the prisoner to be present. The disposition of all grounds for relief ascertained in this way may then be spread on the files and records of the case. Of course, to the extent the files and records ‘conclusively show’ that the prisoner is entitled to no relief on any such grounds, no hearing on a second or successive motion, to the extent of such grounds, would be necessary.”

See also “Remarks On Recent Post Conviction Decisions” by Judge Jean S. Breiten-stein, 10 Cir., 33 Fed.Rules Decisions, 434— 445 (and especially the cases therein discussed at pp. 436-438).

This cause is reversed and remanded for further proceedings consistent with the views herein expressed.

All concur.

      . Tlie record does not show that Mr. Hearnes was present when the appointment was made or that he ever was advised that it was made. The files show a copy of a letter purportedly signed by Mr. Hearnes and addressed to defendant under date of July 25, 1962 which reads as follows:
      “This is to acknowledge your letter of July 25, 1962, and to say that I am not familiar with your case.
      “I am sorry that I can not help you in any way but the Attorney General has ruled that as Secretary of State I am not permitted to take part in the defense of criminal eases.”

      . There is also in the files, in a “Statement of Pacts” filed by defendant in this court on June 25, 1963, a purported copy of a letter alleged to have been received by defendant from Mr. Spain on October 17, 1962, wherein he states:
      “As you know, I am no longer located in Charleston and therefore do not have access to the court records. My memory fails me as to how I became involved in this case and I cannot say as to whether I was appointed by the court or how.”


source: Caselaw Access Project

author: DALTON, Judge.

license: Public Domain

text:
    Earl R. DUDECK, Robert Dudeck, William E. Courter and Daisy B. Courter, (Plaintiffs) Respondents, v. LeRoy ELLIS, Defendant and Third-Party Plaintiff, Appellant, v. Pearl W. and Dorothy SCHWEIZER, Raymond G. and Ruth Schweizer, and Calvin W. and Rita Schweizer, Third-Parties Defendants, Respondents.
    No. 49581.
    Supreme Court of Missouri, Division No. 1.
    March 9, 1964.
    Randolph & Randolph, by Lewis F. Randolph, St. Joseph, for appellant.
    Downs & Pierce, St. Joseph, for respondents Earl R. Dudeck and Robert Dudeck.
    Price Shoemaker and William L. Culver, St. Joseph, for William E. Courter and Daisy B. Courter.
    Ronald S. Reed, Reed & Reed, St. Joseph, for respondents Pearl W. and Dorothy Schweizer, Raymond G. and Ruth Schweizer, and Calvin W. and Rita Schwei-zer.
   DALTON, Judge.

LeRoy Ellis, defendant and third party plaintiff in this proceeding, has appealed from a judgment of the Circuit Court of Buchanan County entered ágainst him on March 25, 1962, as hereinafter stated. A part of the action directly involves title to a number of specifically described tracts of real estate in Buchanan County, hence this Court has jurisdiction of this appeal. A number of different causes of action and cross actions to quiet title, in ejectment and for damages in favor of different named persons and against specifically named persons, because of their alleged interest in the different tracts of real estate, have been joined in one action, apparently on the ground that some common questions of law and fact are involved.

The respondents Schweizers state: "Regardless of the nomenclature of the pleadings, these actions were separate and independent of each other, but during the course of this extended litigation (seven years) were treated by all of the parties and the court as having been voluntarily consolidated for trial * * Further, the record, insofar as we have been able to find from a careful examination of the entire transcript, contains no order of the trial court for a separate trial of any claim or any issue involved, and we find no objection on the part of any party to the procedure followed.

To better understand the pleadings and issues presented, a brief statement of some of the facts is required. At and prior to the year 1915 the Missouri River, in the area where the alleged causes of action arose, was running from the northeast to the southwest and was heavily eroding the south bank of the river, so that farm after farm was being washed into the river. Subsequent to that date, the U. S. Corps of Engineers began revetment work on the south shore of the river adjacent to plaintiffs’ lands to prevent continued erosion, and later, in 1933 and 1934, the U. S. Corps of Engineers constructed a series of dikes extending out into the main channel of the river, more or less perpendicular to the 1915 high bank. Five of these dikes are referred to in the evidence as push dikes, apparently because they were intended to push the current of the river away from the south shore. North and south of the five push dikes, certain other dikes, referred to as trail dikes, were constructed more or less parallel to the south shore of the river. Ultimately, the main channel of the river was moved far to the north ()4 of a mile according to some witnesses), where a new high bank was created on the south side of the river. In 1952 the main channel of the river was diverted to an area far east of the mentioned series of dikes, and portions of the bed of the river, as it existed in 1952, were exposed.

In September 1940 defendant-appellant Ellis purchased from Buchanan County certain real estate alleged to have been of island formation in the Missouri River. It lay off to the north of the 1915 high bank of the river. This alleged island, consisting of more than 215 acres, was more or less of crescent shape, with the outside curve on the north and with one end of the crescent pointing east and the other end pointing south and the inside of the crescent conforming, more or less, to the 1915 high bank of the river, but with varying distances away from the said 1915 high bank. The area between the metes and bounds description of the south shore of the alleged island and the 1915 high bank of the river (estimated at 25-30 acres) was not surveyed or sold by the county. It further appears that plaintiffs-respondents Dudecks, Bled-soe and Courters owned adjacent tracts of land facing north upon the south bank of the river. They had inherited the property and obtained deeds in partition. The legal description of their respective properties was set forth in the respective deeds obtained in 1953. The pleadings of the plaintiffs were not accompanied by any plats or drawings tending to show the relationship of any of the respective tracts of real estate to the 1915 high bank of the river, or to the alleged island, although it appears from the evidence that prior to the stabilization of the south bank of the river a portion of the real estate alleged to have been acquired by the respective parties plaintiffs had long since gone into the river. Nevertheless, they thought they still owned the area within the metes and bounds description in their deeds. A different situation existed with reference to the third party defendants Schweizers’ title, but that situation need not be reviewed here in view of the conclusions we have reached.

From the foregoing statement of facts, it is not surprising that most of the issues presented by the pleadings would turn on whether or not the land purchased by defendant-appellant Ellis from Buchanan County was of island formation and first appeared as a sand bar in the river at low water mark and was wholly surrounded by water in the channel of the river; and that it thereafter grew from such a beginning until it joined the 1915 high bank of the river, with only a slough between that carried water only when the river was high, or whether the entire area of the alleged island was formed by accretions to plaintiffs’ 1915 high hank of the river and, whether said accretions continued to form and move out from plaintiffs’ 1915 south bank of the river to the 1952 bank of the river as it existed when the main channel of the river was first diverted to the east.

With this preliminary statement of facts we must proceed to examine the specific issues and causes of action presented by the pleadings and first determine whether or not all of the issues presented by the pleadings with reference to all of the parties have been finally disposed of by the judgment entered after the verdicts of the jury were returned.

The first petition was filed on May 4, 1956 by five named persons, as plaintiffs, against LeRoy Ellis, as defendant. An amended petition was thereafter filed December 8, 1960, upon which the causes were ultimately tried to a jury along with other issues. This petition contained seven counts and concerned three separately described tracts of real estate. In the first count the Dudecks (brothers) as plaintiffs purported to state a cause of action in ejectment against defendant Ellis for a specifically described 16-acre tract of real estate in Buchanan County. Damages for withholding possession since April, 1956 and for rents and profits were requested.

In a second count the same parties, as plaintiffs, stated a cause of action for damages against defendant Ellis, and alleged that he entered upon the property described in count one, and illegally cut and carried away certain cottonwood trees of the value of $1,000. (There is a recital in the transcript that this count was stricken during the course of the trial.)

In the third count the Dudecks stated a cause of action in quiet title against defendant Ellis for the property described in count one and alleged that defendant Ellis claimed some right, title or interest under a patent from the county, the exact nature and extent of his claim being unknown. Plaintiffs Dudecks also sought to enjoin and restrain the defendant from setting up any claim, title or interest in or to said real estate. No facts were stated in the count sufficient to invoke the jurisdiction of a court of equity.

In the fourth count Winifred Maude Bledsoe stated a cause of action in ejectment for a specifically described tract of real estate in said Buchanan County, containing 15 acres. She prayed for damages and for monthly rents and profits since April, 1956.

In the fifth count plaintiff Bledsoe stated a cause of action against defendant Ellis to quiet title to the specifically described property in count four. She stated that the exact nature and extent of defendant’s claims were unknown to her. She asked to be declared the fee simple owner of the described property and that defendant be forever enjoined and restrained from asserting or claiming any right, title or interest therein. Again, this count did not state facts sufficient to invoke the jurisdiction of a court of equity, even though equitable relief was requested.

In the sixth count W. E. Courier and wife, as plaintiffs, stated a cause in ejectment against defendant Ellis for a particularly described tract of real estate, containing 11 acres more or less and another tract containing 2 acres more or less, describing the same, and she asked for damages, rents and profits.

In the seventh count, the Couriers, as plaintiffs, stated a cause of action in quiet title against defendant Ellis for the real estate described in count six. They alleged that the exact nature and extent of his claims were unknown to them.

In his amended answer to these several counts filed on July 31, 1959, defendant Ellis alleged that he was the owner of a tract of specifically described real estate in Buchanan County containing 215.04 acres more or less; that he had acquired said land from said Buchanan County on the 14th of October, 1940 by a patent issued by the county, which patent had been filed of record on the same date; that the described land formed as an island in the former bed of the Missouri River; that the island had been surveyed and sold for the benefit of the county school fund; and that he had purchased it. He further alleged that there had been added to the south side of the island by the process of reliction an area of land lying between the south shoreline of said island and the former south high bank of the river; that the area had ultimately filled in with sediment and dirt; and that defendant now owned to the center of the slough, for which said land he had filed a counterclaim and cross petition in said action. He further stated that, subsequent to his acquisition of said island, the Missouri River along the north and west side of said island had receded northward; that lands by accretion had been added on the north side thereof to the south shoreline of the Missouri River, as it existed in the year 1952; and that, after the main channel of the river had been changed, there was added to defendant’s land by the process of reliction an area of land extending to the center of the former bed of the Missouri River, as it existed just prior to its being cut off and its course changed; and that defendant Ellis then owned all of the land lying north and west of his original island survey to the center of the former 1952 bed of the Missouri River on the north and west.

In view of the issues here we need not review other detailed allegations of defendant Ellis’ answer to each of the seven counts of the plaintiffs’ petition, except to say that he denied their claims and realleged facts previously stated.

Subsequently, on November 7, 1961, defendant Ellis filed his first amended cross claim against the plaintiffs and as a third party plaintiff he stated claims against certain third party defendants, as heirs of plaintiff Bledsoe, deceased, to wit, Arlene F. DuPont and Eva L. Graski. By this amended cross claim against the plaintiffs and the named third party defendants, he sought to quiet and determine the title to two specifically described tracts of real estate, to wit, Tract No. 1 being the alleged island purchased from Buchanan County, which he claimed under his patent from the county, and by adverse possession for more than ten years.

He also alleged that he had cleared said land of willows and timber and placed same in cultivation; and that he had expended in excess of $20,000 for such purposes and for which he alleged he was entitled to recover, if dispossessed of said land by plaintiffs and third party defendants.

Further, in his said counterclaim and cross -action to quiet title to Tract No. 2, defendant Ellis stated that said tract lay between the south shoreline of the alleged island, as surveyed and sold to him by the county, and the former 1915 high bank of the Missouri River, as it existed south of his alleged island when said island was conveyed to him by the comity. He alleged that when he had purchased the island an arm of the river still ran between the south shoreline of the island and the 1915 high bank of the Missouri River; that, thereafter, as a result of floods and high water in the river, the said arm of the river had been caused to be filled in with dirt, sand and silt and to be built up to the approximate level of defendant Ellis’ alleged island; that the river had ceased to flow along the south shore of his island, “except during extreme high water stages of the Missouri River.” He further joined as third party defendants DuPont and Gráski and alleged that they claimed some interest in said tracts, the exact nature he could not describe.

As such third party plaintiff in said counterclaim and cross action, defendant asked the court to ascertain, try and determine the estate, title and interest of the parties, plaintiffs and defendants, and by its judgment to declare third party plaintiff the fee simple owner of both Tract 1 and Tract 2 and that all other parties, plaintiffs' or third party defendants, had no right, title or interest therein. As an exhibit, he attached to said counterclaim and cross action Exhibit “A” purporting to set forth the detailed description by metes and" bounds of his 215.04 acres of island formation and also a detailed description by metes and bounds of his alleged Tract 2.

On August 10, 1959, defendant Ellis as a third party plaintiff stated a cross claim against the three Schweizer Brothers and their wives and one James J. Muff to quiet and determine the title to the said two tracts of real estate, as specifically described in his action to quiet and determine title against the original plaintiffs and the parties claiming under plaintiff Bledsoe, then deceased. In this cross claim, Ellis, as third party plaintiff, again stated that Tract 1 was an island that had formed in the bed of the Missouri River, or was land that formed by the recession of, or the abandonment by the river; that the same had been properly surveyed and sold by Buchanan County; and that a patent had been issued to him for the property described in Tract 1. He further alleged that Tract No. 2 was a body of land, as stated, between the south shoreline of the aforesaid island and the former (1915) high bank of the river; that said area had formed by the process of reliction; and that such defendant became and 'was the owner of the north half of sai'd lands so formed. He further asserted that the additional third party defendants claimed an interest in the described property, Tracts 1 and 2, the exact nature of which was unknown to him; and that third party defendant James J. Muff had asserted a claim to Tracts 1 and 2, the exact nature of which was unknown to third party plaintiff Ellis.

Thereafter, Ellis, as third party plaintiff, stated a claim in his cross petition in ejectment against the three Shweizers and their wives for the land specifically described in Tracts 1 and 2 of Ellis’ cross claim to quiet and determine title against other parties defendants. He alleged that he was the owner and entitled to possession of this land on May 4, 1959, and he further prayed judgment for damages, rents and profits, as alleged.

Defendant Ellis, as a third party plaintiff, further stated a cause of action for trespass against third party defendants Schweizers, alleging that they trespassed upon the lands of third party plaintiff Ellis, including Tracts 1 and 2 as described in his prior cross claim to quiet title to said Tracts No. 1 and No. 2. He also alleged that said third party defendants entered upon said land and pulled up, removed and threw away survey stakes placed by surveyors to mark the southern boundary line of Ellis’ Tract 2; that said third party defendants had plowed up about two acres of growing wheat on said land in the fall of 1958; and that said third party defendants had deprived him of planting crops in said year to his damage. He prayed for damages actual and punitive against said third party defendants

Thereafter, on September 8, 1959, the said Schweizers, as third party defendants, filed an answer and counterclaim- to third party plaintiff’s cross claim and petition wherein they denied the specific allegations of third party plaintiff’s petition and further answered, and by counterclaim and cross claim against third party plaintiff Ellis they stated a cause in- auiet title and for affirmative relief- against him with reference to the specifically described real estate lying between their property on the south and the south line of the alleged island owned by Ellis, wherein they alleged that their property abutted the Missouri River and that over a period of years accretions formed and added to their land and by reason thereof they owned said lands and accretions thereto. Third party defendants alleged that they became vested with the ownership of said land; and that the accretions mentioned in Tract 2 were accretions to their property. They further based their claim to title upon the fact that they had been in the actual, open, notorious, continuous, exclusive, hostile, adverse, peaceable and uninterrupted possession of the mentioned accreted land between their lands and the lands of Ellis for a period of more than ten years preceding the filing of their petition. They further denied that third party plaintiff Ellis had any right, title or interest in and to the property described in third party plaintiff’s petition. On the same date, September 8, 1959, they filed an answer as third party defendants to the cross claim in ejectment of third party plaintiff Ellis and denied the allegations of his said petition in ejectment against them. In a further count they answered third party plaintiff’s cross bill for trespass against them, as filed by third party Ellis, and denied the allegations of said count for trespass and denied the allegations with reference to the removal of stakes on lands owned and occupied by third party Ellis.

Thereafter, on September 24, 1959, third party plaintiff Ellis filed an answer to the counterclaim of the third party defendants Schweizers, et al., and denied the allegations as to the alleged accretions and as to the adverse possession of said property and also stated that third party plaintiff “makes no claim of ownership to any of the land in Sec. 3, Twp. 57, R. 36, lying east and south of the former high bank of the Missouri River.” He further alleged that he made no claim of ownership to the south half of the lands lying between the 1915 former high bank of the Missouri River and the original island purchased by him from Buchanan County. In his said answer Ellis further alleged that third party plaintiff Ellis owned the north half of said land formed by reliction and described as Tract 2 in the cross claim of third party plaintiff therein; and that third party defendants Schweizers owned the south half thereof “if they own the high bank land.”

With the pleadings in the condition, as stated, the parties began the trial of this cause before the Honorable Frank D. Connett, Jr., Judge of the Circuit Court of Buchanan County, Missouri, Division No. 3, and a jury.

Certain minor modifications of the pleadings, immaterial here, were authorized and a stipulation was entered between plaintiff Joseph Heater and defendant Ellis, whereby Heater dismissed his claim against Ellis, and defendant Ellis was authorized to proceed with his counterclaim against Heater by default. We find no other references in the transcript to the claims of plaintiff Heater.

At the close of the evidence offered by the Dudecks and Couriers, the defendant Ellis had moved for a directed verdict on all counts of their petition against him. The court sustained the motion to the extent that it directed a verdict for defendant Ellis, as to plaintiffs’ Dudecks alleged cause of action for damages, but it overruled the motion as to the part directed against the Dudecks’ and Couriers’ several counts in ejectment and quiet title.

In the course of the trial, the attorneys for defendant Ellis had offered to show, if permitted, that witness Ellis would testify that it cost him $135 an acre to clear the land claimed by him and to get it ready for farming; that he had improved the property from the time he paid $1.25 per acre for it; that he was entitled to show what he had expended to improve the property and to increase its value by such improvements; and that he had cleared some 200 acres or more of the mentioned island in getting it ready for cultivation. He further offered the same evidence in rebuttal of plaintiffs’ claims for rents and profits, since the land would not have had any rental value, except a nominal value and except for the work done by defendant in clearing the property. The court denied the offer. The transcript fails to show why the evidence was excluded.

Near the close of the case the transcript recites that an interlocutory decree had been entered against third party defendants Graski and DuPont. The court indicated that, at the close of the case there would also be a final judgment and decree for Ellis against Bledsoe, but, when her death was suggested, it was pointed out that the third party defendants Graski and DuPont (apparently her heirs) were in default and had been for two and one-half years.

At the close of all the evidence a motion for a directed verdict in his favor was presented by defendant and third party plaintiff Ellis. It was overruled. Motions for directed verdict on behalf of third party defendants Schweizers were presented and apparently overruled. A further motion by third party plaintiff Ellis for a directed verdict in his favor as to Tract 1 was taken up and considered by the court and sustained, as against the third party defendants, and it was adjudged and decreed by the court that Ellis was vested with a fee simple title to all that portion of land described as an island, which lay west of the east line of Sec. 3, Twp. 29, R. W. Thereafter, under numerous instructions the case was submitted to a jury and the following verdicts were returned upon forms of verdict submitted to them:

“(1). Earl R. Dudeck, Robert Dudeck, William E. Courter & Daisy B. Courter, Plaintiffs, vs. LeRoy Ellis, Defendant. We the jury in the above entitled cause, find the issues in favor of Earl R. Dudeck, Robert Dudeck, William E. Courter and Daisy B. Courter, upon their Petition.

“We further find for Earl R. Dudeck, Robert Dudeck, William E. Courter and Daisy B. Courter, and against LeRoy Ellis on his counterclaim, /s/ [Signatures of ten jurors, including the foreman, are omitted.]”

“(2) LeRoy Ellis, Third Party Plaintiff, vs. Pearl W. Schweizer and Dorothy Schweizer, his wife, R. G. Schweizer and Ruth Schweizer, his wife, and C. W. Schweizer and Rita Schweizer, his wife, Third Party Defendants.

“We, the jury, find for the third party defendants, Schweizers, on their counterclaim to quiet title against Ellis, and against third party plaintiff Ellis on said counterclaim. /s/ Ralph A. Bush, Foreman.”

“(3) LeRoy Ellis, Third Party Plaintiff, vs. Earl W. Schweizer and Dorothy Schweizer, his wife, R. R. Schweizer and Ruth Schweizer, his wife, and C. W. Schweizer and Rita Schweizer, his wife, Third Party Defendants.

“We, the jury, find for the third party defendants, Schweizers, on third party plaintiff Ellis’ action, /s/ Ralph A. Bush, Foreman.”

As stated, the record presented fails to show that the trial court at any time ordered the separate trial of any claim or issue and that all counts of all the parties in quiet title or ejectment, and including third party plaintiff’s claim for damages for trespass against the Schweizers, were all tried to the court and jury in one proceeding.

At the close of all the evidence no instructions were offered or refused or given with reference to any of the numerous counts stating causes of action in ejectment for any of the various tracts of real estate described in the several counts in ejectment or in the count for damages for trespass to Ellis’ described real estate.

The judgment on these verdicts purported to vest title in the Dudecks for certain particularly described real estate extending out to the 1952 high bank of the Missouri River, and in the Courters also to certain specifically described real estate extending out to said 1952 high bank of the Missouri River. The decree further stated that defendant Ellis had no right, title or interest in the real estate owned by either the Dudecks or the Courters and that he had no title or lien in said real estate as asked in his counterclaim against said plaintiffs.

It was further adjudged that, in accordance with the verdict of thq jury, the title to certain specific real esate in the decree described was vested in the Schweizers and defendant Ellis had no interest therein. Costs were taxed against defendant Ellis.

Further, an interlocutory judgment against Arlene F. DuPont, Eva L. Graski and James J. Muff was approved and final judgment was entered against these third parties defendants and in favor of defendant Ellis and he was decreed to be the owner of the real estate therein described and that the named parties, third parties defendants, had no right or title therein.

While the issue has not been raised by the parties, it becomes our duty to determine whether or not a final appeal-able judgment has been entered in the case. Deeds v. Foster, Mo.Sup., 235 S.W.2d 262, 265 [4], The right of appeal is purely statutory and, therefore, when the statutes do not give such right, no right exists. Walker v. Thompson, Mo.Sup., 338 S.W.2d 114, 116 [2-5] ; Supreme Court Rule 82.01, V.A.M.R. and § 512.020 RSMo 1959, V.A.M.S.

For the purposes of an appeal a judgment must be a final judgment and it must ordinarily dispose of all parties and all issues in the case, unless the trial court has ordered a separate trial of any claim or issue, or has specifically designated the particular judgment as a final judgment for the purposes of appeal. Stith v. St. Louis Public Service Co., 363 Mo. 442, 251 S.W. 2d 693, 695 [2], 34 A.L.R.2d 972; Magee v. Mercantile-Commerce Bank & Trust Co., 339 Mo. 559, 98 S.W.2d 614, 616; Supreme Court Rules 74.01 and 82.06; § 511.020 RSMo 1959, V.A.M.S. If no such final appealable judgment has been entered by the trial court the appeal is premature and must be dismissed. Deeds v. Foster, supra. Our statute does not allow parties to appeal piecemeal, nor does it permit them to bring up only part of the issues in a case while all other issues remain undecided. There is an exception to this rule, however, as stated, where the trial court has expressly ordered a separate trial of a particular claim or issue.

Since it appears from the record presented in this case that the trial court did not order a trial of the quiet title counts separate and apart from all of the other counts stating causes of action in ejectment and for trespass to real estate, the judgment entered on the quiet title counts is not a final appealable judgment. In such case the trial judge should have held the verdicts of the jury on the quiet title counts in abeyance until a final judgment could be entered disposing of the whole case, including the other counts stating causes of action.

In his brief filed in this court appellant recognized the situation when he states: “The case seems to have been submitted to the jury on quiet title. Although the only official order of the court, was one sustaining Ellis’ motion for directed verdict as to plaintiffs’ claim for damages and overruling same as to ejectment and quiet title. Ejectment seems to have been lost sight of by both sides in the instructions and in the decree rendered on the findings of the jury.”

As stated, the ejectment counts are not mentioned in the instructions and no issues with reference to them were submitted to the jury. No verdicts were returned on the ejectment counts and they are not disposed of by the judgment presented on appeal.

We must and do hold that the appeal in this case is premature and must be dismissed. It is so ordered.

All concur.


author: COIL, Commissioner.

text:
    Georgia CAPRIGLIONE, Respondent, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Appellant.
    No. 49942.
    Supreme Court of Missouri, Division No. 1.
    March 9, 1964.

      John Mohler, Donald K. King, Wm. C. Sullivan, Leo E. Eickhoff, Jr., St. Louis, for defendant-appellant.
    Paul H. Koenig, Roberts P. Elam, St. Louis, for plaintiff-respondent.
   COIL, Commissioner.

Mrs. Capriglione sought $25,000 as damages for alleged personal injuries she sustained as the result of the averred negligence of Southwestern Bell Telephone Company, a corporation. We shall sometimes refer to the parties as they were designated in the trial court. A jury’s verdict was for the defendant. The trial court granted plaintiff a new trial for the stated reason that the court erred in giving contributory negligence instruction 3-A. Defendant appealed from the new trial order and contends the trial court erred in refusing to direct a defendant’s verdict at the close of all the evidence and in holding that instruction 3-A was erroneous. Inasmuch as we have determined, for reasons which will hereinafter appear, that the trial court did not err in granting a new trial for the giving of instruction 3-A, we first determine defendant’s contention that plaintiff failed to make a submissible case.

In determining whether the trial court should 'have directed a verdict for defendant, we state the evidence from the standpoint most favorable to plaintiff, give her the benefit of all favorable inferences arising therefrom, and disregard defendant’s evidence unless it aids plaintiff’s case. Daniels v. Smith, Mo., 323 S.W.2d 705, 706 [1]. We bear in mind also that a jury “may believe all of the testimony of any witness or none of it, or may accept it in part and reject it in part; just as the jury finds it to be true or false when considered in relation to the other testimony and the facts and circumstances in a case,” Burr v. Singh, 362 Mo. 692, 243 S.W.2d 295, 298 [4, 5]; and that an issue is for the jury to decide unless the evidence and the reasonable favorable inferences therefrom “are so strongly against plaintiff as to leave no room for reasonable minds to differ.” Nelson v. O’Leary, Mo., 291 S.W.2d 142, 147 [2-4],

About 10:30 on a night in March, 1958, plaintiff fell when she came in contact with one of defendant’s 40-feet long telephone poles which defendant had temporarily stored in a horizontal position in and upon plaintiff’s side yard at the time and under the circumstances to be recited. Plaintiff, with her husband and their children, lived in a house on the north side of DeTonty Street in St. Louis. Adjacent to the west edge of plaintiff’s yard was a north-south paved alley. At the time in question there was no access to the front of the house (a front porch was under construction). There was a sidewalk which ran from the east edge of the alley (at a place approximately even with the rear of the house) east to a rear entrance. About 4:30 in the afternoon of the day in question plaintiff, her husband and their children, and plaintiff’s mother who was temporarily living with them, left the home on a shopping trip. They left by the rear door and went to their car parked in the alley directly west of the rear door-and, on returning sometime after 9 p. m., the husband drove to the rear sidewalk where all alighted except plaintiff’s husband who continued on southwardly to keep some other appointment. At the time of their réturn, plaintiff saw no telephone pole in the yard. Neither plaintiff nor any member of her family had given permission concerning and had received no notice from defendant that it had placed a telephone pole in plaintiff’s yard. Plaintiff, the children and the grandmother went into the house via the rear entrance.

Plaintiff had promised them some ice cream upon their return from the shopping trip and left the house to purchase it and to mail some letters. To reach the drugstore, she went eastwardly on the walk which went from the alley on the west to the northeast corner of the house, turned to her right or south, and walked on a sidewalk which ran along the east edge of their property to the public sidewalk, and then east on DeTonty. She returned to the rear entrance of her home by the same route. When at her door she realized she had forgotten to mail the letters. The closest mailbox was located on DeTonty west of her home. She thereupon angled southwestwardly across the side yard. As she walked she fell over something “that was real long and dark.” She didn’t know what it was at the time but she “felt numb [and] shocked” — she was nine months pregnant at the time. Upon arising, she proceeded west on DeTonty a short distance to the home of some friends, the Cases, who assisted her into their apartment and tried to get in touch with her husband. She told Mr. Case that she “fell over something in my back yard.” There was dirt on the front of her clothing. Mr. Case, after trying to reach plaintiff’s husband, went to the yard to attempt to determine what had caused plaintiff to fall and discovered the telephone pole, whereupon he called the defendant and reported the incident.

Plaintiff testified that at the time she fell it was dark, “you couldn’t see anything”; that there were no lights burning on the west side of her house; and that the street lights did not appreciably light the area in which the telephone pole was located. On cross-examination, defendant’s counsel had plaintiff trace the route she attempted to traverse on her proposed trip to the mailbox and the telephone pole was squarely in her path.

Defendant’s evidence showed that on the day in question one of its crews was to replace two existing wooden telephone poles with longer ones; that one of the locations was at the edge of the same alley that was adjacent to plaintiff’s property but about one-half block south of DeTonty; that the other location was at the east edge of the alley adjacent to plaintiff’s yard; that the crew finished installing the new pole south of DeTonty and by that time it was too late, to complete the other installation prior to quitting time; that defendant’s crew, in accordance with instructions, laid the pole in plaintiff’s side yard and staked it to prevent its rolling. The west side of the pole was about seven feet east of the east edge of the alley, the south end was about ten or twelve feet north of the north edge of the sidewalk running in front of plaintiff’s house, and its north end was forty feet directly north. No member of the crew nor anyone else on behalf of defendant either obtained permission from plaintiff or any other member of the family to place the pole in the yard or informed plaintiff or any member of her family either by word of mouth or by any other method that the pole had been placed there during the family’s absence.

Defendant contends the trial court should have directed a verdict for it, because there was no evidence that the presence of the pole created a dangerous condition and because there was no evidence that plaintiff fell over the pole. The fact that neither contention is well taken is amply demonstrated by the above résumé of the evidence from a standpoint favorable to plaintiff. Certainly plaintiff had the right to use her own yard for the purpose of walking across it and surely she would not expect or be charged with constructive knowledge that there might be a telephone pole forty feet long lying directly in her path. It is axiomatic that whether one is negligent depends upon all of the existing and surrounding circumstances as well as one’s particular conduct which is charged-as constituting negligence. An act or omission which is negligent in some circumstances may not be negligent in others. Knight v. Richey, 363 Mo. 293, 250 S.W.2d 972, 978. It seems abundantly clear that a jury reasonably could have found that defendant’s act in trespassing upon and placing a telephone pole in plaintiff’s yard without permission, without notice to plaintiff or to anyone representing her, and without providing adequate warning of its presence, constituted a failure on defendant’s part to exercise ordinary care. And surely there can be no doubt that a jury reasonably could have found further, without resort to speculation or conjecture, that plaintiff fell because of the presence of defendant’s telephone pole.

Most of defendant’s argument on the submissible case issue might constitute, and apparently it did, an effective jury argument on the issue of plaintiff’s contributory negligence; but the matters suggested and argued in the brief are irrelevant on the question of defendant’s negligence.

Defendant contends its contributory negligence instruction was not erroneous. That instruction was:

“The Court instructs the jury that by the term ‘contributory negligence’ as that term is used in these instructions is meant a failure to exercise ordinary care, and by the term ‘ordinary care’ as that term is used in these instructions is meant that degree of care as would be exercised by an ordinarily careful and prudent person under the same or similar circumstances.

“Therefore, if you find and believe from the evidence in this case that on the- occasion mentioned-in Instruction- No. 1 that plaintiff failed to exercise that degree of care as a reasonably prudent person would use, under the circumstances,- for her personal safety, in failing to -discover or ob-, serve the presence of a telephone pole upon her yard, under the circumstances in evidence, if you so find, or if you find that plaintiff could have seen the said telephone-pole upon her yard, had plaintiff looked, -if you so find, and if you further find that plaintiff- failed to take any available action to prevent injury to herself by avoiding contact with said telephone pole, if you so ’find, and if you further find that such failure, if you so find, directly contributed to the’ injuries to plaintiff, if you so find, then you should find that plaintiff was guilty of contributory negligence, then your verdict must be for the defendant and against the plaintiff.” (Our italics.)

We shall pass without comment, but by so doing we do not indicate our approval of, the first paragraph of the instruction. The second paragraph directs a defendant’s verdict if plaintiff failed to exercise ordinary care to discover or observe the telephone pole “under the circumstances in evidence.” It also directs that plaintiff was contributorily negligent if she “could have , seen” the telephone pole had she looked and could have avoided it.

The evidence stated most favorably from plaintiff’s standpoint, as we have indicated heretofore, was that the area in which the pole lay was dark and that no street or other lights furnished sufficient illumination to indicate the presence of the pole and, further, that plaintiff saw no warning lights upon or about the telephone pole. Defendant’s evidence was that the area was lighted by street lights and that the crew left four clean, lighted lanterns about and upon the pole, two of which were on the side from which plaintiff approached. Thus, plaintiff’s evidence as to lights and lighting was diametrically opposed to defendant’s evidence on that subject. Consequently, this was a case in which it was proper, if not’ essential, that the instruction should - have indicated the “circumstances in evidence” to which defendant intended to refer in the instruction. For example, .by hypoth-. e-sizing that the area which the- pole occupied was illuminated by street lights and that the presence of the pole was indicated by lighted lanterns clearly visible, etc.

Furthermore, and clearly erroneously, the instruction directs that plaintiff was contributorily negligent if the jury found' that plaintiff “could have seen the said telephone pole upon her yard, had plaintiff looked,” and could have avoided it. It is, of course, well settled that contributory negligence instructions should require the jury to find that plaintiff was guilty of a negligent act or omission and that such contributed directly to cause plaintiff’s injury. Danner v. Weinreich, Mo., 323 S.W.2d 746, 750 [1].

Instruction 3-A does not require a finding that the failure of plaintiff to have seen the pole constituted negligence and that such negligence contributed directly to cause plaintiff’s injury. Rather, the instruction directs that if plaintiff could have seen the pole and didn’t and that the failure to have seen it and to have avoided it contributed to her injury, plaintiff was negligent.

Finally, and important under the facts of this case, the instruction directed the jury to find plaintiff contributorily negligent if she could have seen the telephone pole, without any reference to or direction concerning the applicable standard of care. Plaintiff was required to exercise ordinary care for her safety. The failure of the instruction to have informed the jury of that standard of care was particularly harmful to this plaintiff because, as we have noted heretofore, under the evidence favorable to her, she had no possible reason to have expected that a trespasser would place a telephone pole in her yard and that it would be in a path she might want to take across her own yard; and thus a jury reasonably could have found that plaintiff was under no duty to have maintained a lookout for a telephone pole stored in her yard. The fact situations are different, but the principles stated and applied in Johnson v. Presley, Mo., 320 S.W.2d 518, 524 [4], and in Lay v. McGrane, Mo., 331 S.W.2d 592, 598, are applicable here. Those cases hold that an instruction is erroneous which is so drawn as not to make clear to a jury that the applicable test is not whether it was physically possible for a plaintiff to have discovered a situation or an object, such as the telephone pole in this case, if, for example, Mrs. Capriglione had examined the premises for obstructions, but the applicable test is what a plaintiff could or should have seen in the exercise of ordinary care; in this case, what Mrs. Capriglione should have seen in the exercise of ordinary care as she walked across, her yard intent upon reaching a mailbox.

When it is considered: that the instruction failed to hypothesize generally or specifically the circumstances to which it referred in hypothesizing plaintiff’s failure to have discovered the presence of the telephone pole; that the instruction did not require the jury to find, but directed, that plaintiff’s failure to have discovered and to have avoided the telephone pole constituted negligence; and that the instruction permitted the jury to find plaintiff con-tributorily negligent by finding only that it was physically possible for her to have discovered the presence of the pole, without reference to the applicable standard of care required of her, we have no doubt that the instruction was erroneous and that the trial court did not err in granting plaintiff a new trial.

The judgment is affirmed and the case is remanded.

WELBORN, C., concurs.

HOUSER, C., dissents.

PER CURIAM:

The foregoing opinion by COIL, C., is adopted as ’ the opinion of the court.

All concur.


author: PER CURIAM.

text:
    In re Matter of the Estate of R. Irl Jones. Langdon R. JONES and Byron Jones, Executors, Appellants, v. Mrs. Josephine JONES, Respondent.
    No. 49572.
    Supreme Court of Missouri, En Banc.
    March 9, 1964.

      Robert H. Jones, Kennett, for appellants-executors.
    Langdon R. Jones, pro se.
    McHaney, Billings & Welman, Kennett, for respondent Josephine Jones.
   PER CURIAM.

R. Irl Jones, a resident of Dunklin County, died on May 19, 1957. He was survived by his widow, Josephine Jones, but had no children or other lineal descendants. The will of R. Irl Jones was admitted to probate in Dunklin County. Langdon R. Jones and Byron Jones, brothers of the testator, were appointed executors of the estate.

On March 4, 1958, Josephine Jones elected, pursuant to Sec. 252 of the 1955 Missouri Probate Code (Laws of Mo. 1955, p. 385, 465, Sec. 474.160, V.A.M.S.) to take her “legal share in the estate of the said R. Irl Jones” and to “renounce all provisions in the will of said R. Irl Jones * * Under the statute above referred to, Josephine Jones became entitled to receive, in addition to exempt property and an allowance for support for one year, one-half of the estate of R. Irl Jones.

In the course of administration of the estate, the federal estate tax liability was determined and the tax paid by the executors in the amount of $127,792.78. Although Josephine Jones made known at the time that the estate tax was determined, her position that she should bear no part of the federal estate tax except to the extent that non-probate property received by her contributed to the tax, the tax liability was determined on the theory that Josephine Jones would bear, ultimately, one-half of the estate tax and the marital deduction was taken accordingly.

On their final settlement, the executors charged Josephine Jones with one-half of the amount of the estate tax, less credit for one-half of the amount received from beneficiaries under the will as a contribution toward the estate tax, the net amount charged to her being $61,118.18. Josephine Jones filed objections to the final settlement on the grounds that she was improperly charged with one-half of the net federal estate tax. She claimed that, in view of the marital deduction, available under the federal estate tax law, of the value of property passing to the surviving spouse up to one-half of the value of the gross estate, she was entitled, under her election, to receive one-half of the gross estate, free and clear of the federal estate tax, and that her share of such tax should depend solely upon the value of the property which she received, in excess of her marital deduction. The probate court overruled the objections and approved the final settlement. On appeal, the Circuit Court reversed, stating in its judgment: “The surviving widow’s share of this estate ‘should be received by her undiminished by any charge for federal estate tax except by that part of the federal estate tax allocable to that portion of her deceased husband’s property received by her which formed part of his taxable estate.’ ” The court held that Josephine Jones was entitled to an additional $52,865.17 from the executors, the amount being determined after charging Josephine Jones for the tax on such portion of the estate received by her as exceeded the maximum marital deduction.

The executors have appealed to this court. The amount in controversy exceeds $15,000.00. Therefore, this court has jurisdiction of the appeal.

In the case of Carpenter v. Carpenter, 364 Mo. 782, 267 S.W.2d 632, we considered where the ultimate burden of the federal estate tax should lie as between the beneficiaries of a decedent’s estate and the recipients of non-testamentary property, included in the gross estate for estate tax purposes. In that case, we examined the approach which had been taken in other jurisdictions in determining the ultimate burden of the federal estate tax. We noted that in a number of jurisdictions the rule was that, absent a state statute or testamentary provision to the contrary, the ultimate burden of the estate tax fell upon the residuary estate. We referred to statutes which, in an effort to obviate the harsh results that the “burden on the residue” rule frequently produced, had been enacted in a number (at that time 16) of jurisdictions, and which specified in what circumstances and in what manner the federal estate tax should be apportioned among the interested parties. We then took note of the rule which, following the decision of the United States Supreme Court in the case of Riggs v. Del Drago, 317 U.S. 95, 63 S.Ct. 109, 87 L.Ed. 106 (1942), clearly establishing state authority to fix the ultimate burden of the federal estate tax, had been adopted in a number of jurisdictions, whereby, under equitable principles, the burden of the estate tax was apportioned among the persons sharing in the testator’s probate estate and those receiving property not subject to probate, for which the estate tax was originally required to be paid by the estate, according to the manner in which the property received by each contributed to the estate tax liability. We chose, in the Carpenter case, in the absence of any statutory provision or clearly expressed intention of the testator to the contrary, to reject the “burden on the residue” rule, and to adopt, instead, the principle of “equitable apportionment.”

In the case of Hammond v. Wheeler, Mo.Sup., 347 S.W.2d 884, decided by this court on July 10, 1961, we extended the application of the equitable apportionment principle to determine, in the light of the marital deduction, the ultimate estate tax liability of a widow who elected, under the statute in effect prior to the 1955 Probate Code, to share in her deceased husband’s estate under the election statute, rather than under her husband’s will. In that case the testator died in 1954. The widow elected to share in the estate under what was then Section 469.020(2) RSMo 1949 (repealed, Laws of Mo.1955, p. 385, Sec. A), which provided that she receive “one-half of the real and personal estate belonging to the husband at the time of his death, absolutely, subject to the payment of the husband’s debts.” Acknowledging that the principle of equitable apportionment could be applied only in the absence of statutory direction as to the burden of the tax, we first considered in Hammond whether or not the federal estate tax was a “debt” within the meaning of the election statute and con-eluded that it was not. Finding no other state statute which applied, we concluded that equitable principles should be applied in determining the extent of the estate tax burden to be borne by the widow. We considered to what, if any, extent the widow’s ultimate burden of the tax should reflect the fact that, because of the marital deduction, property received by her did not “cause or contribute to the amount of the federal estate tax on her decedent spouse’s estate.” 347 S.W.2d 1. c. 891. In this connection, we considered the object of the marital deduction, stating: “The marital deduction was enacted along with changes in the law as to income taxes and gift taxes, in an attempt to provide or to enable states to provide for equality in taxation among the residents of community-property states and noncommunity-property states.” 347 S.W.2d 1. c. 886. We recognized that Congress had not attempted to specify who should bear the ultimate burden of the federal estate tax or who should receive the benefit of the tax saving attributable to the marital deduction. “Although the share of the surviving spouse is subject to the lien and the tax must be paid out of the estate as a whole, the federal statute leaves it to the states to determine how the tax burden shall be distributed among those who share in the taxed estate.” Fernandez v. Wiener, 326 U.S. 340, 345, 66 S.Ct. 178, 181, 90 L.Ed. 116. In conclusion, we stated (347 S.W.2d 1. c. 893) :

“Inasmuch as there was and is no statute applicable to this case and no judicially pronounced rule of which we are aware, which bars or is inconsistent with the application of equitable principles in determining the question in this case, and inasmuch as tlie basic principle of equitable apportionment was recognized and applied in Carpenter v. Carpenter, supra, and inasmuch as it seems to us to be inequitable and grossly unjust to require a surviving spouse to pay a portion of the federal estate tax on the deceased spouse’s estate solely by reason of the fact that the surviving spouse receives a statutory share of the estate which is not taxed and the receipt of which share does not cause or contribute to cause any part of the tax, we are of the opinion in this case that the renouncing widow’s share of her deceased husband’s estate should be received by her undiminished by any charge for federal estate tax except by that part of the federal estate tax al-locable to that portion of her deceased husband’s property received by her which formed part of his taxable estate.”

Neither party to this case differs with the conclusion which we reached in the Hammond case. The appellants, however, insist that changes in the applicable statutes upon enactment of the 1955 Probate Code have provided the legislative direction, found lacking in Hammond, and that the burden of the tax must follow such legislative direction. They assert that principles of equitable apportionment applied in Hammond, can, under the probate code, no longer be applied in a case such as this.

The 1955 Probate Code became effective January 1, 1956. Laws of Mo.1955, p. 385, Sec. 1. The election statute of that code, which was in effect on May 19, 1957, the date of the death of R. Irl Jones, provided, in part as follows (Laws of Mo.1955, p. 465, Sec. 252, Section 474.160 RSMo 1955 Supp.) :

“When a married person dies testate as to any part of his estate, a right of election is given to the surviving spouse solely under the limitations and conditions herein stated:

“(1) The surviving spouse, upon election to take against the will, shall receive in addition to exempt property and the allowance under section 135 one-half of the estate if there are no lineal descendants of the testator; or, if there are lineal descendants of the testator, the surviving spouse shall receive one-third of the estate;

“(2) When a surviving spouse elects to take against the will he shall he deemed to take by descent, as a modified share, such part of the estate as comes to him under the provisions of this section, and shall take nothing under the will. * * * ”

As originally introduced in House Bill No. 30 of the 68th General Assembly, the word “net” appeared before the word “estate” where it appeared in subparagraphs (1) and (2) of section 252. In addition, the phrase “net estate” was defined by section 2(24) of the bill in its original form, as follows: “Net estate refers to the real and personal property of a decedent exclusive of exempt property, the allowance under section 135 and enforceable claims against the estate.”

The phrase “net estate” was likewise employed, in the original version of the bill, in section 236, the statute of intestate succession. The section originally read, in part, as follows:

“The net estate of a person dying intestate descends and shall be distributed, subject to the payment of debts, as follows:

“(1). To the surviving spouse, one-half of the net estate ;
“(2). * * *.”

In the course of its passage, House Bill No. 30 was amended by deleting the definition of “net estate” from section 2, by deleting the word “net” where it had appeared before the word “estate”' in section 252, and by rewriting section 236, in the form in which it presently appears, in part, as follows (Sec. 474.010, V.A.M.S.) :

“All property as to which any decedent dies intestate shall descend and be distributed, subject to the payment of claims, as follows:

“(1) The surviving spouse shall receive:
“(a) One-half thereof if the intestate is survived by issue, father, mother, brother or sister, or their descendants ;
“(b) All thereof if the intestate is not survived by issue, father, mother,, brother or sister, or their descendants.”

This legislative history is, we feel, significant in our search for a legislative direction on the burden of the estate tax: which, under the 1955 Probate Code, would' preclude the application of the principle of equitable apportionment, employed in Hammond. The language “net estate” is quite similar to that which the courts in other jurisdictions have found sufficient to preclude equitable apportionment of the federal estate tax, particularly in situations; such as those covered by section 252, in which the surviving spouse elects to take - against the will. Those cases were reviewed at some length in Hammond, and l we will not again consider them in detail here. However, it is interesting to note - that the phrase “net estate” was the exact statutory language relied upon by the Wisconsin Supreme Court in the case of In re Uihlein’s Will, 264 Wis. 362, 59 N.W.2d 641, 38 A.L.R.2d 961, as precluding the-court’s application of the equitable apportionment principle in the case of a widow’s renunciation of her husband’s will.

In addition, as pointed out above, in amending section 252, no language was inserted in the 1955 enactment, as was done in the general descent section (Sec. 236), making the share of the electing spouse subject to the payment of claims. Had such express language been included in section 252, we might well have had a different problem to consider, in view of the statutory definition of the term “claims” in section 2(3) as including “all estate and inheritance taxes.”

That these changes and omissions were made with problems of estate and inheritance taxes in mind is borne out by the editorial comment which appears in Vol. 25, V.A.M.S., p. 153, following section 472.010 (Section 2 of the original bill), as follows:

“A definition of 'net estate’ was included in the bill as originally introduced and the general descent provision (474.010) as well as the renunciation of will section (474.160) used the term. Because of its possible effect on the determination of estate or inheritance taxes it was removed by legislative amendment.”

Certainly, the removal from the election statute of a provision which might well have been considered sufficient to fix the thrust of the federal estate tax (In re Uihlein’s Will, supra), must evidence a legislative purpose to avoid such effect.

Some further light in this regard is shed by the General Assembly’s subsequent addition in 1957 (Laws of Mo.1957, p. 829, 853) of the phrase “subject to the payment of claims” in section 474.160, the election statute, so that the share of the electing spouse is described now as follows:

“(1) The surviving spouse, upon election to take against the will, shall receive in addition to exempt property and the allowance under section 474.260 one-half of the estate, subject to the payment of claims, if there are no lineal descendants of the testator; or, if there are lineal descendants of the testator, the surviving spouse shall receive one-third of the estate, subject to the payment of claims; * * * ”.

By the same bill, section 472.010, the definition section, was amended (Laws of Mo. 1957, p. 831) by deleting the words “all estate and inheritance taxes”, formerly included in defining the word “claims”. Here again, we have a demonstration of the awareness on the part of the legislature of the potential impact upon estate tax liability of language used by it, particularly as the estate tax liability of a spouse who elects to take against a will might be affected. The continued inclusion of the words “All estate and inheritance taxes” in the definition of the term “claims” might, again, well have provided a legislative direction regarding the burden of the tax. See Northern Trust Co. v. Wilson, 344 Ill.App. 508, 101 N.E.2d 604.

In view of the foregoing, wé must conclude that there is not to be found in section 474.160, as it appeared at the death of R. Irl Jones, any such legislative direction as would preclude the application of the same rule of equitable apportionment as was applied in the Hammond case.

The appellants urge, however, that other provisions of the 1955 Probate Code enter into the picture and supply the legislative direction regarding the burden of the estate tax. They contend that under sub-paragraph (2) of section 474.160, the electing spouse takes by descent and that we should, therefore look to the general descent statute (Sec. 474.010), under which, intestate property descends, “subject to the payment of claims”, which were, in turn, as of May 19, 1957, defined to include “all estate and inheritance taxes” (Section 472.010 RSMo 1955 Supp.).

Subparagraph (2) of section 474.160, provides:

“When a surviving spouse elects to take against the will he shall be deemed to take by descent, as a modified share, such part of the estate as comes to him under the provisions of this section, and shall take nothing under the will-.”

The appellants’ argument overlooks the first sentence of section 474.160, reading as follows: “When a married person dies testate as to any part of his estate, a right of election is given to the surviving spouse solely under the limitations and conditions herein stated: * * (Emphasis ours.) This language is quite explicit that the electing spouse looks to the election statute and not elsewhere for her rights in her deceased spouse’s estate Otherwise, the language emphasized has no meaning, a result to be avoided, if possible. In re Tompkins’ Estate, Mo.Sup., 341 S.W.2d 866. In addition, subsection (2) of Sec. 474.160, relied upon by appellant, expressly refers to “such part of the estate as comes to him under the provisions of this section * * Such language would appear to preclude reference to another statute as the source of the electing spouse’s taking.

The appellants would place the major significance on the fact that, by the terms of 474.160(2), the electing spouse takes by “descent”, thereby making the taking referable to the general descent statute (Sec. 474.010). However, the significance of the use of this term was clearly explained by the committee which drafted the 1955 Probate Code. In discussing this provision, the Final Report of the Joint Probate Laws Revision Committee to the 68th General Assembly (1955), stated (p. 148-149 ; 26 V.A.M.S., p. 543):

“The first sentence of the section and subdivision (2) are from section 32 of the Model Probate Code. The reason for such subdivision (2) is given in the Model Probate Code as follows: ‘Subdivision (2) is inserted to eliminate a prolific source of litigation. Much difficulty has arisen under some election statutes in determining whether the share which the surviving spouse takes against the will is taken as heir or in some other capacity. This problem has arisen in connection with the construction of devises “to heirs” and in statutes in which the word “heirs” is used with reference to inheritance taxes and many other matters. This subdivision specifically states that the surviving spouse takes by descent.’ ”

See Simes, Model Probate Code (1946), Sec. 32, p. 69.

This explanation demonstrates clearly that the object of this provision is to define the manner in which an electing spouse succeeds to the interest in the property which she receives. It merely describes the quality of the estate and does not make the spouse a taker under the statute of descent- rather than the election statute. The provision is wholly consistent with other provisions of the probate code, by virtue of which a surviving spouse may be an “heir” (section 472.010, subd. 14, V.A.M.S.). However, a surviving spouse who elects to take against the will, becomes an “heir” who takes under the election stat? ute, not the general intestate statute. Even under a statute which provided that the election of the surviving spouse should be “whether to take under the will or under the statute of descent and distribution” (Gen.Code, § 10504-55), an election was held not to place the spouse under the operation of the descent and distribution law. Miller v. Miller, 129 Ohio St. 230, 194 N.E. 450. We are of the opinion that the use of the phrase “take by descent” in Sec. 474.160(2) does not mean that an electing spouse takes under the descent and distribution statute, rather than the election statute.

Appellant attaches significance to the fact that Sec. 474.190, V.A.M.S., in prescribing the form of election, refers to an election to take the “legal share in the estate”, such language having been employed in the instrument of election in this case. Appellants argue that the words “legal share” are used in this connection in contradistinction to “equitable share” and that, therefore, no equitable rules or principles may be employed in determining such share. Actually, all that this provision does is to prescribe the form which the notice of election to take against the will shall take. Section 474.160 has already defined the nature and scope of the interest of the electing spouse. Section 474.190 merely prescribes the language to be employed in making known the desire to accept the benefits provided by Section 474.160, and in no manner is intended to detract from the measure of the share provided in 474.160. None of the cases cited by appellants dealt with language employed in a situation such as this. In the case of Weinberg v. Safe Deposit and Trust Company, 198 Md. 539, 85 A.2d 50, 37 A.L.R.2d 188, there is passing reference to the election by the widow to take “her legal share of the estate”. However, no significance is given this language in the opinion of the court. Actually, the decision in that case turned on construction of the Maryland apportionment statute (Md.Ann.Code Art. 81, Sec. 162). The existence of that statute is what precluded the application of equitable apportionment, not the fact that the widow elected to take “her legal share of the estate”.

We also note appellants’ argument that in the case of Owen v. Riffie, Administrator, Mo.Sup., 323 S.W.2d 765, this court stated: “It may be conceded that the distributive share of the surviving spouse who elects to take against the will under the provisions of section 474.160 was and is limited to the net estate, both prior and subsequent to its amendment in 1957.” Appellants’ contention is that, if such is the case, the net estate must be determined by first deducting, among other deductions, the estate tax from the gross estate. In the Owen case, the question before the court was whether or not an election under 474.-160 precluded homestead for the electing spouse, under section 474.290. We concluded that the electing spouse was entitled to homestead. We were not considering the problem here presented, where we are attempting to ascertain whether or not there existed in May, 1957, a legislative direction on apportionment of estate tax on the share of the electing spouse. We pointed to no statute in Owen which expressly provided that the share of the surviving spouse should be of the net estate and none was to be found. We could, in a proper case, which is not likely to arise now in view of the 1957 amendment to section 474.160, expressly making the share of the electing spouse subject to claims (newly defined), decide whether or not any debts or obligations of the decedent should have been deducted prior to the 1957 amendment of 474.160. We were not, however, actually called upon to decide the question in Owen, nor are we here. Certainly, our language in Owen cannot furnish the legislative direction which must exist, under the Hammond case, if the doctrine of equitable apportionment is not here to be applied.

According to the stipulation of facts upon which this matter was presented to the circuit court, if the marital deduction had been computed on the basis of the tax apportionment which we have here approved, the estate tax would have been $10,-768.43 less than the amount actually paid. The appellants urge that Josephine Jones should be charged with one-half of this “overpayment”.

In states having apportionment statutes, the rule generally followed is that the tax to be apportioned is the tax actually paid. Hale v. Leeds, 28 N.J. 277, 146 A.2d 216, In re Buckhantz’ Estate, 120 Cal.App.2d 92, 260 P.2d 794; Annotation, 37 A.L.R.2d 199, 250. The reasoning behind the rule is stated: “The task of proration begins at the point when the taxing authorities end their duty of fixing the estate tax; it takes the accomplished fact of taxation and then prorates the burden of the actuality of the tax.” In re Buckhantz’ Estate, supra, 260 P.2d 1. c. 797. In addition, under apportionment statutes, the apportionment proceeding is generally a separate proceeding from the administration of the estate. Liability of executors or administrators for erroneous payment of tax is, therefore, not determinable in such proceedings, but must be established in proceedings to surcharge the executor’s account. Hale v. Leeds, supra, 146 A.2d 1. c. 216.

This case, while involving apportionment as the primary question, is actually a proceeding pertaining to the executors’ settlement. Therefore, the' nature of the proceeding would not preclude an inquiry into responsibility of the executors for overpayment of the tax, at least as to the parties here involved. However, in her brief, respondent states that she is not asserting any claim against the executors based upon mismanagement of the estate. In view of that position, we need.inquire no further into the question of the executors’ responsibility for the overpayment.

However, we perceive no reason which would support the executors’ position that one-half of the overpayment should be borne by the widow. Why should she share a greater burden of the tax not owed than of the tax which should have been paid? The executors have paid out a sum of money in payment of the estate tax assessed against the estate. Our problem is to determine what portion of such payment should be chargeable to the respondent. In view of all of the circumstances of this case, including the fact that the law pertaining to apportionment had not been clearly established at the time of payment, and in further view of the fact that the widow, at such time, had urged the apportionment of her share of the tax, we have concluded that the widow should share in the overpayment in the same proportion as the tax allocated to* the property received by her in excess of her maximum marital deduction bears to* the tax which would have been owed on the basis of the apportionment which we have approved. According to the stipulation, the pro-rata share of the widow of the tax was $8,664.40, and the tax actually owed $117,026.35. Applying this proportion to the overpayment, the widow’s share thereof is $797.27.

The executors also urge that we should, in this proceeding, order that they be credited for one-half of the profit to the estate resulting from the collection, subsequent to the filing of the final settlement, of $3,000.00 on a note that had been inventoried at $1.00. This money having been* received subsequent to the filing of the final; settlement, this question should be presented to the probate court under Sec. 473.600.

The judgment of the circuit court will' be modified by a reduction in the amount owed respondent by the widow’s share of the “overpayment” of the estate tax, or $797.27, so that the amount owed by the executors will be $52,067.90, and, as modi-died, the judgment of the circuit court is ■affirmed as of the date of the original judgment.

All concur, except EAGER, C. J., who •dissents.

      . Section 2056, I.R.C.1954, 26 U.S.C.A. § 2056.

      . Citing: In re Heringer’s Estate, 38 Wash.2d 399, 230 P.2d 297, 300; 47 C.J.S. Internal Revenue § 776, p. 1016; 28 Am.Jur. 136, Inheritance, Estate and Gift Taxes, Sec. 279; Annotation 142 A.L.R. 1137. For a later annotation, listing cases following rule, see 37 A.L.R. 2d 169.

      . According to CCH Federal Estate and Gift Tax Reporter, par. 2490.16, twenty-two states had statutes dealing with apportionment of federal estate taxes as of July, 1963. The earliest enactment was in New York in 1930. (N.Y.Laws e. 709 (1930), Decedent Estate Law, McKinney’s Consol.Laws, e. 13, § 124). The most recent is Michigan in 1963, Pub.Acts 1963, No. 144. In Missouri, apportionment statutes have been before the General Assembly, but have not been enacted. Senate Bill No. 3, 69th General Assembly (1957); Senate Bill No. 190, 70th General Assembly (1959). An outline of a recommended statute for Missouri is to be found in Powell, Ultimate Liability for Federal Estate Taxes, W.U.L.Q., Dec. ’58, 327, 345.

      . There is no difference of opinion between the parties here upon the application in this case of the election statute and other provisions of the 1955 code as they stood at the date of the testator’s death. See Owen v. Riffle, Administrator, Mo.Sup., 323 S.W.2d 765; Annotation, 129 A.L.R. 871. The 1957 amendments of the code (Laws of Mo.1957, p. 829), assuming the validity of the emergency clause of the amendatory act, because effective June 12, 1957. Id., p. 860.

      . We would point out that Wisconsin, prior to the Uihlein case, had rejected the principle of equitable apportionment. In re Will of Kootz, 228 Wis. 306, 280 N.W. 672. In several other instances, jurisdictions which have rejected the equitable apportionment principle in computing the estate tax on the share of a widow who renounced her husband’s will, had previously rejected the principle in other situations in which it might have been applied. Thus, the Illinois Court of Appeals, in Northern Trust Co. v. Wilson,, 344 Ill.App. 508, 101 N.E.2d 604, re jected equitable apportionment on the tax on the share of a widow who took against the will. However, the Supreme Court of Illinois had previously rejected the principle in the case of First National Bank of Chicago v. Hart, 383 Ill. 489, 50 N.E.2d 461. Likewise, the West Virginia Supreme Court of Appeals which, in Guaranty National Bank v. Mitchell, 144 W.Va. 828, 111 S.E.2d 494, declined to apply the principle as to the estate tax on the share of a renouncing widow, had previously adhered to the “burden on the residue” rule in a case In which apportionment had been sought. Cuppett v. Neilly, 143 W.Va. 845, 105 S.E.2d 548. Similarly the North Carolina Supreme Court, rejecting the principle in Wachovia Bank and Trust Co. v. Green, 236 N.C. 654, 73 S.E.2d 879, bad previously applied the rule of “burden on the residue” in the eases of Buffaloe v. Barnes, 226 N.C. 313, 38 S.E.2d 222, and Craig v. Craig, 232 N.C. 729, 62 S.E.2d 336. By contrast, the Court of Appeals of Indiana, which had previously applied the principle of equitable apportionment in other situations (Pearcy v. Citizens Bank & Trust Co., 121 Ind.App. 136, 96 N.E.2d 918, 98 N.E.2d 231), recently, in the ease of Seymour National Bank v. Heideman, 133 Ind.App. 104, 178 N.E.2d 771, applied the principle of equitable apportionment in the case of an electing spouse who was, under the Indiana statute, entitled to one-half of the “net estate” of the decedent.