author: DONNELLY, Judge. NORWIN D. HOUSER, Special Judge, FINCH, Judge,

text:
    STATE ex rel. GREAT AMERICAN INSURANCE COMPANY et al., Relators, v. Honorable Laurence R. SMITH, Judge, Circuit Court, Jackson County, Respondent.
    No. 60174.
    Supreme Court of Missouri, En Banc.
    March 13, 1978.
    Rehearing Denied April 10, 1978.
    John C. Risjord, Ronald K. Barker, Niew-ald, Risjord & Waldeck, Kansas City, for relators.
    Gene A. DeLeve, Ronald S. Weiss, Ber-man, DeLeve, Kuchan & Chapman, Kansas City, for respondent.
   DONNELLY, Judge.

This is an original action in prohibition.

On December 24, 1973, a restaurant and night club owned by Cannova Enterprises, Inc., was destroyed by fire. Relators had insurance in effect on the contents, leasehold improvements and for business interruption. Cannova and the loss-payee on the policies notified relators of the fire loss and furnished proofs of loss. Relators employed General Adjustment Bureau to investigate the origin of the loss. Attorney John C. Risjord was also employed to investigate the origin of the loss.

On May 31, 1974, relators denied the claim stating that the loss was of an incendiary origin. Prior to May 31, 1974, attorney Risjord wrote three letters to relators.

On August 9,1974, Cannova and the loss-payee filed suit in the Circuit Court of Jackson County alleging that relators’ refusal to pay is “vexatious and without reasonable cause * *

The controversy in this case involves an attempt by plaintiffs in the trial court to discover the contents of the three letters written by Risjord to relators.

On April 21,1977, respondent judge made the following order:

“Plaintiffs having made oral motion to require Raymond Schurkamp, George Freeseman and William L. Mathiesen and their respective insurance companies to produce certain described documents on the taking of their depositions, and the Court having given full consideration to same,
“IT IS HEREBY ORDERED that each of aforementioned witnesses produce at the taking of his deposition, subject to the condition hereinafter stated, all documents, described in his subpoenae, that are dated May 31,1974 and earlier, but is not required to produce those documents bearing a date subsequent to May 31, 1974.
“IT IS FURTHER ORDERED that, at the option of defendants’ counsel, any of aforementioned documents required to be produced, may first be presented to this Court for viewing by this Judge, who reserves the right to exclude from presentation at deposition any portions of said documents with respect to which interests of justice require exclusion.
“The Court believes that aforementioned documents, required to be produced, are reasonably calculated to lead to the discovery of admissible evidence as related to the issue of defendants’ vexatious refusal to pay and that plaintiffs have shown they have a substantial need of the materials in the preparation of their case and that they are unable without undue hardship to obtain the substantial equivalent of the materials by other means. Interests of justice require the documents to be produced notwithstanding claim of lawyer-client privilege except for any portions the Court deems should be excluded following inspection of the documents.”

Relators applied for prohibition and we ordered the issuance of our preliminary rule.

Plaintiffs below assert they are entitled to discovery under Rule 56.01(b). Relators rely on the attorney-client privilege. The applicable law is as follows:

(1) In State ex rel. Cain v. Barker, 540 S.W.2d 50, 52 (Mo. banc 1976), this Court stated:
“The language of rule 56.01(b)(1) authorizes discovery of matters not privileged. This necessarily means that privileged matters, such as communications between attorney and client, are not discoverable unless the privilege is waived by the client.”
(2) Section 491.060, RSMo 1969, reads in part as follows:
“The following persons shall be incompetent to testify:
“(3) An attorney, concerning any communications made to him by his client in that relation, or his advice thereon, without the consent of such client;
(3) In 8 Wigmore on Evidence, § 2320 (McNaughton rev. 1961) it is stated:
“§ 2320. Communications by the attorney to the client. That the attorney’s communications to the client are also within the privilege was always assumed in the earlier cases and has seldom been brought into question. The reason for it is not any design of securing the attorney’s freedom of expression, but the necessity of preventing the use of his statements as admissions of the client * *, or as leading to inferences of the tenor of the client’s communications * *
(4) In 8 Wigmore on Evidence, § 2322 (McNaughton rev. 1961) it is stated:
“§ 2322. Inference from claim of privilege; Judge to determine privilege. If a client party claims the privilege, the prevailing view — although there is a sharp split of opinion — is that no inference should be drawn against him as to the unfavorable nature of the information sought.
“The claim of privilege being made, the trial judge determines whether the facts justify the allowance of the claim. This follows from the general principle of the judicial function * *

We conclude from the above that, even in a case involving alleged vexatious refusal to pay, the attorney-client privilege protects a letter written by an attorney to his client from discovery when the letter: (1) “concerns any communication made to him by his client” in the attorney-client relation; or (2) contains “his advice thereon”; or (3) could lead to “the use of his statements as admissions of the client”; or (4) could lead “to inferences of the tenor of the client’s communications.”

We note that on May 11, 1977, respondent judge stated to counsel that he was willing “that the three letters in question be produced so that the Court can inspect them in in camera." We believe this procedure should be followed. We have no reason to believe respondent judge will ignore the law set forth above in examining the letters and in determining whether the letters should be produced for examination by plaintiffs.

Accordingly, the preliminary rule in prohibition is quashed and the petition dismissed.

NORWIN D. HOUSER, Special Judge, concurs in separate concurring opinion filed.

HENLEY and SEILER, JJ., concur and concur in separate concurring opinion of NORWIN D. HOUSER, Special Judge.

FINCH, J., dissents in separate dissenting opinion filed.

BARDGETT and RENDLEN, JJ., dissent and concur in separate dissenting opinion of FINCH, J.

MORGAN, C. J., not sitting.

NORWIN D. HOUSER, Special Judge,

concurring.

I concur in the opinion written by Judge Donnelly, which defines the scope of the attorney-client privilege, and specifies what subject matter in letters from the attorney to the client is thereby protected, but which does not denégrate or detract from that well-established principle. It may be useful to point out that the opinion does not presently require revelation of the contents of the three letters to parties litigant, or approve the use of the material as evidence. The opinion simply subjects the three letters to judicial scrutiny for the limited purpose of determining whether their contents, in whole or in part, are of such a nature that they must be revealed and made available during the taking of depositions for use at the trial. The opinion merely holds that the question of privileged communication vel non is one of law for the trial court to determine. Bussen v. Del Commune, 239 Mo.App. 859, 199 S.W.2d 13, 21[12] (1947). I would add that if, upon examination by the trial court, the letters recite factual matter relating to the origin of the fire— developed by relator’s attorney or his staff from outside sources, during their investigation — the attorney-client privilege will not protect such factual matter from discovery. State v. Cloyd, 394 S.W.2d 408, 411[6] (Mo. banc 1965); Merrin Jewelry Co. v. St. Paul Fire and Marine Ins. Co., 49 F.R.D. 54 (S.D.N.Y.1970); Bird v. Penn Central Company, 61 F.R.D. 43 (E.D.Pa.1973); Bourget v. Government Employees Ins. Co., 48 F.R.D. 29 (D.Conn.1969); Chitty v. State Farm Mutual Ins. Co., 36 F.R.D. 37 (E.D.S.C.1964).

FINCH, Judge,

dissenting.

I respectfully dissent. The principal opinion approves an order requiring en camera production of the three letters from attorney John C. Risjord to relators wherein the court, pursuant to rules laid down in the principal opinion, would determine what parts, if any, of said letters must be disclosed to plaintiffs in the suits on the fire insurance policies. I would direct the court to conduct a hearing to determine whether, at the time the letters were written, the relation of attorney and client existed between Risjord and those to whom the letters were directed with respect to the subject matter of the communications. If the court determines these questions in the affirmative, I would hold that the communications were protected by the lawyer-client privilege and that production of the letters should not be required. Of course, this would not be true if it is determined that the relationship of attorney and client with respect to the subject matter of the communications did not exist at the time the letters in question were written.

This procedure would be in harmony with what the court said in Bussen v. Del Commune, 239 Mo.App. 859, 199 S.W.2d 13 (1947), in discussing the propriety of the action of the trial court in admitting in evidence the testimony of a lawyer concerning a note which had been addressed to him by the late husband of defendant. In upholding the admission of that note in evidence the court said, 199 S.W.2d at 20-21:

“Our statute, which is declaratory of the common-law rule, provides that an attorney shall be incompetent to testify concerning any communication made to him by his client in that relation, or his advice thereon, without the consent of such client. Sec. 1895, R.S.Mo. 1939, Mo. R.S.A. § 1895.
“It is thus to be observed that for the rule of privilege to apply, the relation of attorney and client must have actually existed between the parties at the time the communication was made or the advice given. State ex rel. Chicago, R. I. & P. R. Co. v. Wood, 316 Mo. 1032, 292 S.W. 1033. Moreover, such relation must have existed as to the subject matter of the communication or advice (C. Aultman & Co. v. Daggs, 50 Mo.App. 280); and the communication, if it is to be privileged, must have been made to the attorney in his professional capacity, and on account of the relation of attorney and client. State ex rel. Chicago, R. I. & P. R. Co. v. Wood, supra. If such relation existed, the privilege is not confined to communications or advice in connection with pending or anticipated litigation, but it extends to all matters where the attorney was consulted by his client for professional advice or service in the course of the employment. Johnson v. Sullivan, 23 Mo. 474.
“The question of whether the note was a privileged communication was one of law for the court (Hull v. Lyon, 27 Mo. 570); and to enable it to rule upon the question, the court proceeded to examine Mr. Boverie in regard to his relations with Del Commune, and the circumstances under which the note had come into his possession.”

It should be noted that the inquiry was not directed to whether some part or parts (or all) of the note might be admissible in spite of the attorney-client privilege by reason of the nature of such content. Instead, the determinative issue was whether the relationship of attorney and client existed between the parties at the time of the communication with reference to the subject matter of the communication. The court concluded from the evidence, based on the finding of the trial court, that the note had not been communicated on the basis of an attorney-client relationship. Consequently, it was not a privileged communication.

As discussed in 8 Wigmore on Evidence § 2292 (McNaughton rev. 1961), the Bussen holding that our statute is declaratory of the common law is in accord with numerous jurisdictions. The significance of this point is recognized to be that the terms of the statute are not intended to serve as a literal test for the existence of the privilege but rather to name and recognize the privilege. The logical development of the privilege by judicial decision is thus fully contemplated.

The reasoning of Bussen is not in conflict with the authority cited in the principal opinion. It should be noted that the quotation from Wigmore at § 2320 addresses two separate matters — the rule and the underlying rationale therefor. It is not by accident that the rule there stated is not said to be limited to the two types of statements which warrant protection. The rule is plainly stated to be that the attorney’s communications to the client also fall within the privilege (when the proper relationship and subject matter are present); yet the reasons Wigmore advances for the rule address only communications which by their content could be used as admissions of the client or indicate the tenor of the client’s communication. The rule does not focus upon the content of the communication because such inquiry necessarily leads to disclosure of the statements to be protected, at least to the court and possibly erroneously to others. This would reintroduce an element of uncertainty which may inhibit a free exchange of information and advice between attorney and client.

By focusing instead on the existence of the relationship and general subject matter of the communication, communications which justify the privilege are fully protected without any significant impairment of legitimate inquiry. The likelihood that communications made under circumstances justifying a finding of privilege will be such as to fall within the justification for the rule is very high. The likelihood that the communication will contain relevant and useful information which does not fall within the justification is too low to justify the potential mischief of an inquiry into content.

It may be that under the standards set out in the principal opinion the trial court would hold, after an en camera examination, that the letters are privileged and need not be exhibited to plaintiffs. However, if the court should reach a contrary conclusion, difficult problems arise. Once the letters or any portions thereof are disclosed to plaintiffs, then, to use an old expression, the cat is out of the bag. It will not be a satisfactory solution to say that relators could test on appeal the propriety of that ruling, because a decision on appeal that the trial court was wrong and that the letters were protected by the attorney-client privilege would not again make confidential that which meanwhile has been made known to others including plaintiff. There is no way to put the cat back in the bag. Therefore, unless the court would provide relators with an immediate en camera appellate review of the propriety of the trial court’s ruling that some part or parts of the letters must be revealed, relators will have no meaningful appellate review of the trial court’s decision to require disclosure of what is claimed to be protected by the attorney-client relationship and privilege.

The communications which plaintiffs seek in this case are written but whatever principle is established in this case will apply also to oral communications between attorney and client. If an en camera inspection of these letters by the trial court is to be approved and directed, a similar procedure would apply in another case wherein the communications between lawyer and client were oral. In that instance, supposedly, the trial judge would require counsel or client, or both, to appear before him en camera and testify as to the oral communications sought by plaintiff in such a case. Presumably, the court (since counsel for plaintiff would not be in attendance at said en camera hearing) would examine the counsel or client, or both, under oath and then decide whether all or any portions of such communications testified to before him would be disclosed to the plaintiffs in such case. I find such procedure unacceptable.

Furthermore, the procedure authorized in the principal opinion would result in the trial judge, in effect, taking scissors and excising any part considered to be confidential and not subject to disclosure, and then ordering the remainder released to the party opponent. This might well result in some statements, taken out of context of the whole communications, being disclosed and used against the client. As a result, the client might be forced, in order to avoid a distorted picture, to disclose the remainder of the communication, even though held to be privileged. Such a result is neither desirable or justified.

I have read the transcript in this case. Plaintiffs have obtained copies of the investigative reports of the adjustment firm and have received other information by various discovery procedures. I find nothing in that transcript that convinces me that we should embark on a new course in Missouri which, in my judgment, will at the very least impair and perhaps ultimately destroy the attorney-client privilege which existed at common law and which is further preserved and protected by § 491.060 RSMo 1969.


source: Caselaw Access Project

author: DONNELLY, Judge. BARDGETT, Judge,

license: Public Domain

text:
    DON SHRUM, INC., et al., Appellants, v. VALLEY MINERAL PRODUCTS CORPORATION, a corporation, Respondent.
    No. 60286.
    Supreme Court of Missouri, En Banc.
    March 13, 1978.
    Rehearing Denied April 10, 1978.
    Geoffrey L. Pratte, Roberts & Roberts, Farmington, for appellants.
    W. Munro Roberts, Jr., Jay G. Newquist, Roberts, Heneghan & Coffelt, Inc., St. Louis, David L. Colson, Colson & Wagner, Farmington, for respondent.
   DONNELLY, Judge.

Plaintiffs filed a private nuisance suit seeking injunctive relief and damages. They alleged that defendant’s operation of its quarry and kiln was causing an excessive amount of dust to settle over their properties, and that this dust, when combined with the water of a dew or light rain, produced a caustic mixture which hardened into a mortar-like substance and was difficult to remove. Plaintiffs tried their case on the damage issue alone. The jury found for defendant. Plaintiffs sought a new trial and it was denied. They appealed to the St. Louis District of the Court of Appeals where the judgment was affirmed. The cause was then transferred here by order of this Court.

The determinative question on this appeal is: when intentional concealment by a juror on voir dire examination is asserted by a party, must proof of such asserted concealment be made by testimony from the juror whose concealment is at issue at a hearing on a motion for new trial, or may intentional concealment be shown by the circumstances in evidence in the particular case?

During the voir dire examination of prospective jurors, the following transpired:

“Are any of you acquainted with, or related by blood or marriage, with Mr. Ben Donnell, who is an officer of that company?
“MRS. VAN TAYLOR: I’m acquainted with him, but—
“MR. R. R. ROBERTS: Okay. Do you think that would affect your judgment in this case in any way, Mrs. Van Taylor?
“MRS. VAN TAYLOR: No.
“MR. R. R. ROBERTS: Just not a close friendship? Just a close acquaintanceship, would you say?
“MRS. VAN TAYLOR: (Nodding her head.)
“MR. ROBERTS: Okay, thank you.”

Juror C. A. Ledbetter did not respond to counsel’s question. He sat as a juror in the case and signed the verdicts which found the issues in favor of the defendant.

In support of their motion for new trial, plaintiffs filed affidavits in which each affi-ant stated as follows: “ . . . that following the jury’s returning of a verdict in the case of Don Shrum Inc., et al, v. Valley Mineral Products Corporation, Cause No. 23,869, he was present in the Courtroom when Juror Ledbetter, who served on the jury in said cause, walked up to defendant’s vice president, Ben Donnell, extended his hand to shake hands and said words to the effect: Ben, how have you been. It’s good to see you. And that the said Vice President Ben Donnell addressed said juror Led-better by his first name and said: We can talk now. And that thereafter [they] engaged in a conversation on first name basis and made reference to their prior acquaintanceship and knowledge of one another’s families.”

We note the following applicable statements of law:

In Lee v. Baltimore Hotel Co., 345 Mo. 458, 463, 136 S.W.2d 695, 698 (1939), Division No. 1 of this Court said:

“The right of trial by jury guaranteed by our Constitution, if it is to be worth anything, must mean, as this court has said, ‘the right to a fair and impartial jury.’ ”

In Woodworth v. Kansas City Public Service Company, 274 S.W.2d 264, 270, 271 (Mo.1955), Division No. 1 of this Court said:

“ . . . It is the duty of a venireman on voir dire examination to fully, fairly and truthfully answer all questions, so that challenges may be intelligently exercised, and the venireman’s intentional concealment of a material fact may require the granting of a new trial. . . ”

In Robbins v. Brown-Strauss Corp., 363 Mo. 1157, 1165, 257 S.W.2d 643, 647 (1953), Division No. 1 of this Court said:

“It has been written that the qualification of a juror should be determined before the trial begins; that such qualification is a matter of exception; and that the parties must develop such information and take such exceptions, as they desire to preserve for appellate review, before the jury is sworn. Massman v. Kansas City Public Service Co., Mo.Sup., 119 S.W.2d 833, and cases therein cited; Section 494.050 RSMo 1949, V.A.M.S. An exception is made to this rule so that where it is shown that matters which might establish prejudice or work a disqualification were actually gone into on the voir dire, and false answers were given, or deception otherwise practiced, the court will be permitted to consider the question on the motion for a new trial, either upon oral testimony taken at a hearing on the motion, or by affidavits. Such a situation is closely akin to that when a new trial is sought for newly discovered evidence. The ‘complaining party is not to be left without a remedy for the want of a prior objection and exception when the disqualification of the juror was one which he by due diligence could not have learned sooner.’ Harding v. Fidelity & Casualty Co. of New York, Mo.App., 27 S.W.2d 778, 779; Massman v. Kansas City Public Service Co., supra.”

In order to find an intentional concealment on voir dire examination, it must be demonstrated that the juror heard and understood the question asked him. Brady v. Black and White Cab Co., 357 S.W.2d 720, 725 (Mo.App.1962). It must be demonstrated that the juror knew what was being asked him. Ideally, this knowledge on the part of the juror would be shown by his stating at a hearing on a motion for new trial, or by affidavit, that he heard and understood the question. Cf. Beggs v. Universal C. I. T. Credit Corp., 387 S.W.2d 499 (Mo. banc 1965); and Triplett v. St. Louis Public Service Company, 343 S.W.2d 670 (Mo.App.1961). However, as a practical matter, such knowledge ordinarily must be shown by the circumstances in evidence. Circumstantial evidence is usually the only means available of proving knowledge; and knowledge may be proved by circumstantial evidence.

In Herrman v. Daffin, 302 S.W.2d 313, 316 (Mo.App.1957), the Court said:

“Knowledge may be proved by circumstantial evidence as well as by direct evidence. But the circumstances must be such that the necessary fact may be inferred therefrom and must reasonably follow, so that the conclusion so reached is not the result of guesswork, conjecture or speculation, and such evidence must ‘have a tendency’ to exclude every other reasonable conclusion.”

. We hold that when intentional concealment by a juror on voir dire examination is asserted by a party, proof of such concealment may be shown by the circumstances in evidence.

The question then narrows in this case to whether the circumstances in evidence show an intentional concealment under the Herrman test. We believe that they do. We must conclude from the interchange counsel had with Mrs. Van Taylor that Juror Ledbetter heard and understood counsel’s question. We believe he intentionally concealed the fact that he was acquainted with Mr. Donnell. Plaintiffs were deprived of an impartial jury. They are entitled to a new trial.

We recognize that the granting of a new trial in this type of situation is ordinarily discretionary with the trial court. Lee v. Baltimore Hotel Co., supra. However, in this case where the evidence is uncontra-dicted that Juror Ledbetter was in fact acquainted with Mr. Donnell and it is conclusively demonstrated by the circumstances that he intentionally concealed such acquaintanceship, we must hold the trial court abused its discretion in failing to grant plaintiffs a new trial.

The judgment is reversed and cause remanded for new trial.

MORGAN, C. J., HENLEY, FINCH and SEILER, JJ., and HOUSER, Special Judge, concur.

BARDGETT, J., dissents in separate dissenting opinion filed.

RENDLEN, J., not sitting.

BARDGETT, Judge,

dissenting.

I respectfully dissent and am in general agreement with the court of appeals resolution of the issue addressed by the principal opinion. The court of appeals said:

“Plaintiffs’ first issue concerns the alleged failure of a juror to reveal his friendship with an officer of defendant corporation. Plaintiffs Don Shrum and L. J. Miller filed affidavits with the trial court swearing that they saw Mr. Ledbetter, a juror, conversing as an old friend with Mr. Ben Donnell, defendant’s vice-president, in the courtroom after the jury was dismissed.
“Plaintiffs properly contend that the intentional concealment of such facts will give rise to an inference of bias and prejudice. Snavely v. Kansas City Terminal Ry. Co., 461 S.W.2d 1, 4 (Mo.1970). Plaintiffs are also correct in their assertion that where it is shown that a matter which might establish prejudice was actually gone into on voir dire and false answers were given, the trial court will be permitted to consider the question on a motion for a new trial. Woodworth v. Kansas City Public Service Co., 274 S.W.2d 264, 270 (Mo.1955). It is not controlling that the question as to possible prejudice is one to the panel generally rather than to the individual juror, so long as the juror hears and understands it. Beggs v. Universal C. I. T. Credit Corp., 387 S.W.2d 499, 503 (Mo. banc 1965).
, “The record before us, however, contains nothing to show that such intentional concealment took place. During the voir dire examination both plaintiffs’ and defendant’s attorneys asked if anyone was personally acquainted with the officers of defendant corporation or if there was any factor which might affect the juror’s judgment. But the record contains no evidence that the juror heard or understood the questions. Nothing in the record shows that the plaintiffs called the juror to testify at the motion for new trial or that they presented his affidavit to the court. The only evidence of this alleged concealment was the two affidavits of the plaintiffs. In all of the cases to which plaintiffs have directed our attention, the juror whose concealment was at issue was called and testified at the hearing on the motion for new trial. While the affidavits of plaintiffs were sufficient to require the trial court to hear oral evidence, Schierloh v. Brashear Freight Lines, 148 S.W.2d 747 (Mo.1941), they are not evidence that a concealment took place. The record before this court contains no mention of any attempt to introduce any evidence of such a concealment at the hearing. An unintentional failure to disclose information not directly connected with the case does not necessarily show prejudice on the part of a juror so as to call for a new trial. Triplett v. St. Louis Public Serv. Co., 343 S.W.2d 670, 673 (Mo.App.1961).
“The general rule is that the determination of whether there was any intentional concealment will be left to the sound discretion of the trial court. Triplett, supra, at 673; Knowles v. Goswick, 476 S.W.2d 563, 564-565 (Mo.1972), and an appellate court will not reverse unless an abuse of discretion appears from the record. Triplett, supra, at 673; Knowles, supra, at 565. From the record before us we can find no such abuse.”

The principal opinion states the issue to be: when intentional concealment by a jur- or on voir dire examination is asserted by a party, must proof of such asserted concealment be made by testimony from the juror whose concealment is at issue on a motion for new trial, or may intentional concealment be shown by the circumstances in evidence in the particular case?

The court of appeals opinion, arguably, might be interpreted as saying that the proof of juror misconduct can only be proved by some sort of direct, rather than circumstantial, evidence. That is what appellant urged on the motion to transfer and contended that the court of appeals holding on that matter was contrary to Robbins v. Brown-Strauss Corp., 363 Mo. 1157, 257 S.W.2d 643 (1953). The principal reason we transferred the case was because it arguably appeared that the court of appeals holding excluded circumstantial evidence from consideration and, therefore, conflicted with Robbins. Regardless of that, the holding in the principal opinion that circumstantial evidence may be shown in support of the contention of intentional concealment puts the law of this case in conformity with Robbins and satisfies the purpose of granting this transfer.

However, appellant does not even contend that the trial court failed to consider the evidence which, under Robbins, that court should have considered. And it is the trial court’s judgment that is on appeal, and the issue on appeal is whether the trial court, not the court of appeals, abused its discretion in failing to grant plaintiff (appellant) a new trial. I am not in disagreement with the holding of the principal opinion that the voir dire itself can be considered by a trial court, along with other evidence, as some circumstantial evidence of a juror’s intentional concealment of a material matter. I do not think the court of appeals opinion necessarily holds to the contrary. But, the question of whether circumstantial evidence could be considered by the trial court was not in issue as the appeal went to the court of appeals nor, as I see it, is it in issue on the appeal in this court. I say this because the appellant did not contend in the court of appeals and does not contend in this court that the trial court prevented the admission of any evidence offered by appellant nor is it even contended that the trial judge failed to consider the voir dire along with the affidavits in ruling the motion for new trial. We know from the record that the motion for new trial was argued to the trial judge on June 17, 1975, and that the trial court considered the same and overruled the motion for new trial.

We do not know what appellant’s counsel argued to the trial judge at the hearing on the motion for new trial, but one would assume that he argued that he (plaintiff’s counsel) had asked these questions of the jury and the particular juror didn’t respond, and that the judge should therefore find the juror intentionally concealed relevant information, and a new trial should be granted. At least the tenor of appellant’s brief is that the facts of the voir dire were. argued and that the trial judge did consider everything the appellant wanted him to consider. Appellant’s position on appeal then is that the trial judge, after having considered everything appellant wanted him to consider, abused his discretion in failing to grant appellant the relief appellant sought — a new trial. Appellant does not contend the trial court failed to consider the circumstantial evidence. To the contrary, appellant argues that the trial judge did consider all the evidence before him and came to the wrong conclusion.

In the instant case the affidavits were signed by two of the losing plaintiffs. While I do not argue that the affidavits were intentionally falsified, I do suggest they may be incorrect or mistaken and further believe they simply do not demonstrate with the conclusiveness necessary to overturn the trial court’s order overruling the motion for new trial that the juror intentionally concealed anything. At least these affidavits ought not to be conclusive on the trial court. From a circumstantial standpoint, if the juror meant to intentionally conceal his friendship, he would have to be a fool to readily acknowledge it in open court immediately after returning the verdict and in front of the parties and their attorneys when just two days before at voir dire he denied (by silence) any friendship with the same man. Assuming this juror is not a fool, his apparent openness leads me to believe that the juror did not intentionally conceal knowledge of the defendant’s vice-president Ben Donnell.

But whether I come to the factual conclusion indicated supra, and some other appellate judge comes to a different conclusion, is relatively unimportant. The trial court heard the argument of counsel on the motion for new trial and at least saw the jurors, heard the voir dire, and saw the affidavits, and that court overruled the post-trial motion. There is no contention the trial court refused to allow testimony on the issue or that he failed to consider the voir dire along with the affidavits. He simply considered what had happened before him along with the affidavits and denied the motion. Maybe he didn’t believe the affidavits or maybe having observed and heard the voir dire and believing the affidavits, nevertheless, did not believe the juror intentionally concealed anything. I find nothing in this case that compels the conclusion that the juror intentionally concealed information. There is certainly no indication that the judge did not consider the affidavits or the voir dire as evidence, circumstantial or direct, although as indicated I do not believe the affidavits are admissible to prove the truth of their contents over objection.

The burden of proving the juror lied is and ought to be on the proponent of that proposition, but if the burden is shifted by the mere filing of an affidavit of a third person, and if the failure of the other party to produce evidence makes it conclusive that the juror lied, then the initial burden of proof is certainly rather illusory.

I find no basis for saying the trial judge failed to consider anything put forward by the appellant or the voir dire that took place before him in ruling on the motion for new trial. Nor is there even any contention that the trial court failed to consider something. The proceedings were regular, the trial judge considered everything the appellant requested he consider and simply ruled against appellant on the motion for new trial.

I find no basis on this record for holding that the trial judge abused his discretion in overruling appellant’s motion for new trial on this issue and, therefore, I dissent.


author: SEILER, Judge.

text:
    Virginia Lee CHERRY, Plaintiff-Respondent, v. The CITY OF HAYTI HEIGHTS and David Humes, Mayor, Defendants-Appellants, Mary Emma Branch, Tax Collector, Defendant.
    No. 59950.
    Supreme Court of Missouri, En Banc.
    March 13, 1978.
    Rehearing Denied April 10, 1978.

      Shulamith Simon, Husch, Eppenberger, Donohue, Elson & Cornfeld, St. Louis, for appellants.
    James E. Reeves, Ward & Reeves, Ca-ruthersville, for respondent.
    John D. Ashcroft, Atty. Gen., Dan P. Card, II, Asst. Atty. Gen., Jefferson City, for amici.
   SEILER, Judge.

This case was transferred here by this court on application of defendants-appellants following a decision against them by the Springfield district of the court of appeals. We sustained the application to transfer because it raises questions of general interest and importance pertaining to a collateral challenge by a private party to the incorporation of a municipality and an alleged departure from established principles governing such challenges, where questions of laches, de facto incorporation, and absence of appeal from the order of incorporation are involved. We will treat the case as though it were here on original appeal. Mo.Const. Art. V, § 10.

Plaintiff Virginia Lee Cherry, to prevent the assessment and collection of taxes on her real property by the city of Hayti Heights, which result she seeks to obtain by striking at the legal existence of the city, filed her individual suit for declaratory judgment that the incorporation of the city of Hayti Heights by order of the Pemiscot County court on December 28, 1972, was invalid, and that defendant city and its officers should be enjoined from levying or otherwise asserting jurisdiction over her 121 acres of farm land located within the purported city limits. Plaintiff contended that because, of claimed non-compliance with the statutory mandates for the incorporation of cities and towns, §§ 72.010 et seq. RSMo 1969, as amended, Supp.1975, the county court proceedings were null and void. The circuit court entered summary judgment in her favor. We reverse and direct entry of judgment in favor of defendants.

Defendants filed their answer, denying the alleged defects and insufficiencies of the incorporation proceedings. Defendants also pleaded the defense of laches on the part of plaintiff and failure on her part to appeal the ruling of the county court authorizing the incorporation election or its subsequent order of incorporation. Defendants, in addition, answered plaintiff’s interrogatories. Plaintiff then filed a motion for summary judgment. Thereafter, defendants filed their motion to dismiss the petition for failure to state a claim upon which relief could be granted. Subsequently, defendants filed the affidavit of Mayor David Humes, of Hayti Heights, in opposition to plaintiff’s motion for summary judgment and also in support of their motion to dismiss. No counter-affidavits were filed by plaintiff; rather, plaintiff at the hearing on the motions in the trial court offered in evidence as exhibits the answers of the defendants to the interrogatories, together with certain records of the county court, the latter being identified by the county clerk, who testified in person.

Where summary judgment proceedings are involved one rule is that “[t]he facts stated in the affidavits and exhibits filed by defendant [or plaintiff] in support of its motion for summary judgment to which plaintiff [or defendant] filed no verified denial stand admitted for the purpose of the motion for summary judgment,” Dietrich v. Pulitzer Publishing Company, 422 S.W.2d 330, 333 (Mo.1968). “Once a motion for summary judgment is made and supported by affidavit, the adverse party can no longer rest on the mere allegations or denials in his pleadings, ‘but his response, by affidavits or otherwise provided in this Rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.’ ” Hurwitz v. Kohm, 516 S.W.2d 33, 36 (Mo.App.1974); See Waltz v. Cameron Mutual Ins. Co., 526 S.W.2d 340, 343 (Mo.App.1975). The foregoing applies in the case before us. Additionally, defendants, by filing the affidavit of Mayor Humes (which also stands uncontradieted by plaintiff) in support of their motion to dismiss, turned said motion into a “speaking” motion, which is expressly permitted by our rule 55.27(a), see Empiregas, Inc. v. Hoover Ball & Bearing Co., 507 S.W.2d 657, 660 n. 4 (Mo.1974). Rule 55.-27(a) provides further that such a motion is to be treated as one for summary judgment and disposed of as provided for in the summary judgment rule, rule 74.04.

Thus, the case finds both sides moving for summary judgment and relying on the same proof with no significant dispute between them as to the facts set forth in the affidavits and the exhibits.

These facts are as follows:

At the October 17, 1971 regular meeting of the city council of Hayti, Missouri, a committee of citizens representing the contiguous but unannexed community of Hayti Heights visited the meeting and presented a petition for annexation of their community into the city limits of Hayti.

Their purpose was to secure water, sewer, fire and police protection, street improvements, garbage collection and other city services. The Hayti Heights community was located immediately west of Hayti. Therefore, under § 72.130, RSMo 1969, before it could be incorporated, it had first to request inclusion by extension of boundaries of the existing city, Hayti, and that failing, it could, after expiration of one year, seek incorporation of its own under § 72.080, RSMo 1969. As the incorporation ultimately worked out, the two communities lie side by side with a common boundary between much of the east side of Hayti Heights and the west side of Hayti.

At the October 17, 1971 meeting, the city attorney explained the legal procedure and limitations on the annexation of additional territory and the finances presently available to the city of Hayti. The citizens committee and aldermen then discussed their mutual desire and the various possible ways for the Hayti Heights community to receive the benefit of federal financial assistance, the committee being of the opinion that it might be advantageous to their community to incorporate as a separate city but that the consent of Hayti was a precondition thereto.

Whereupon the city of Hayti aldermen unanimously adopted a motion granting such consent and any other cooperation to aid the citizens of the Heights community in receiving much needed federal and state assistance for the municipal services which the city of Hayti was unable to provide.

A petition for incorporation with the requisite number of signatures was duly filed with the county court of Pemiscot County on November 13,1972 and within 280 days following the date on which the first signature was affixed to the petition. The petition described by metes and bounds the area to be incorporated, was accompanied by a plat thereof, stated the approximate population of the area, the assessed valuation of all real and personal property therein and stated the facts and basis on which the proposed city would have the ability to furnish normal municipal services within a reasonable time after incorporation and prayed that an incorporation election be held. The county court thereupon ordered that an election be held on the question of incorporation on December 19, 1972, designated the polling places and the hours of election and appointed judges and clerks of the election. Notice of said election was published in a properly qualified weekly newspaper -of general circulation in Pemis-cot County, the Missouri Herald, on three consecutive Thursdays, November 30, December 7 and December 14, 1972, preceding the day of election. Promptly following the election, the county court canvassed the ballots and declared the results to be 350 votes in favor of incorporation and 16 opposed. On December 28, 1972, the county court entered its order declaring the City of Hay-ti Heights to be an incorporated municipality and by its further order of the same date designated the first officers — mayor, aider-men and police chief — of the town.

Immediately thereafter the city organized and proceeded to conduct municipal business. The first meeting of the city council was held on December 28, 1972 and meetings were held on a regular bi-monthly basis thereafter. A staff was employed, elections were held and real estate and personal property taxes, merchants taxes and license fees were assessed and collected. Plaintiff paid the city real property taxes on her 121 acres for the initial year of incorporation without objection.

Land was purchased by the city and a city hall was constructed. The city began to provide a panoply of municipal services, including full time police protection, fire protection, regular street maintenance, weekly garbage pick-up and street lighting. Regular elections for city officers were held in April 1973 and April 1974. A special election to replace an official was held in October, 1974.

The city received a $375,000 grant from the Economic Development Administration for the construction and installation of a complete water project to supply approved water to all land located within the corporate limits. It received a “Step I” grant from the Environmental Protection Agency and from the Missouri Clean Water Commission for the planning of a complete municipal sewer system. The city developed its own twenty-year comprehensive plan for proposed uses of all land within the city limits, including a proposed industrial site located on land owned by the plaintiff and abutting the right-of-way of the proposed state highway by-pass south of the city. The city entered into franchise agreements with the various utilities for electric power, telephone and natural gas services. It participates in the federal Revenue Sharing Program and shares in the state gasoline tax proceeds.

On December 20, 1974, after the defendant city had conducted itself for nearly two years in a manner not unlike any other incorporated municipality in this state, plaintiff, owner of property within the corporate limits of Hayti Heights, filed a petition by which, as stated, she collaterally attacked the prior incorporation.

The circuit court overruled defendants’ •motion to dismiss and sustained plaintiff’s motion for summary judgment. In so doing the court found numerous deficiencies in the incorporation proceedings, declaring them null and void on their face and that the judgment of the county court authorizing “annexation” was likewise null and void.

The circuit court, however, did not address and made no finding or declaration as to defendants’ assertion of laches on the part of plaintiff or the effect of the absence of an appeal from the county court’s order calling the election or its order of incorporation.

I.

To begin with, the laches issue, in our judgment, cannot be ignored. “The rule has existed in Missouri for many years that the State may be barred by laches from successfully maintaining an action in quo warranto attacking the validity of a village, city or school district.” State on inf. Eagleton v. Champ, 393 S.W.2d 516, 528 (Mo. banc 1965). If the state itself can be barred by laches, certainly it follows that a private individual making a collateral attack as here on the validity of the incorporation of a town can likewise be barred by laches. “[TJhere is no fixed amount of time which must elapse [before laches is available], each case being decided on its particular facts.” Id. at 528.

“The general meaning of laches is that the party seeking relief has delayed his action for an unreasonable and unexplained length of time resulting in disadvantage to the other party.” State ex rel. King v. Village of Praethersville, 542 S.W.2d 578, 580 (Mo.App.1976). In the Praethersville case, laches was held to bar an attack by quo warranto even though the boundaries of the village, which had only about 40 houses and occupied not over 40 acres, encompassed an additional 1,460 acres of farm land, with which the village had no particular connection.

The principles involved are well stated in State ex rel. Maddersen v. Nohle, 16 N.D. 168, 172-73, 112 N.W. 141, 143 (1907), a case where the delay of less than two years on the part of a private individual in attacking collaterally the validity of the organization of a county was held to constitute laches and a bar to maintenance of the action, the court saying:

In applying the doctrine of laches or the rule of estoppel by acquiescence, no fixed time will be taken as controlling, but the facts in each particular case must govern the court’s decision, and where, as in this case, although but about two years have elapsed since the county was organized, grave consequences would inevitably follow to a large number of people as a result of relator’s successful prosecution of the proceedings, and no perceivable benefit to any person would be obtained thereby, this court is justified, if not required, by the plainest principles of jurisprudence to deny the relief prayed for by exercising its undoubted discretion to refuse the writ. . . . Conceding the unconstitutionality of the law in question, we hold . . . that it would be a gross abuse of the discretion lodged in this court in such cases to grant the relief prayed for, ‘and thereby precipitate the governmental chaos which would immediately and certainly result from such action.’ The Supreme Court of Illinois in McCormick v. Kreinke, 179 Ill. at page 308, 53 N.E. 549, in disposing of a similar question in which relator had waited three years before making application, held to the same effect. To grant the relief which relator asks would, in our opinion, unnecessarily open up an indefinite field of strife, confusion, and litigation without any corresponding benefits to relator or any other person, and as was said in State v. Des Moines, 65 N.W. 818, 96 Iowa 521, 31 L.R.A. 186, 59 Am.St.Rep. 381, “the law does not demand such a sacrifice for merely technical reasons.” It follows that the application should be denied, and it is so ordered.

Efforts by defendants in the present case toward incorporation commenced in 1971. The petition for incorporation was filed on November 13, 1972. An election was held on December 19, 1972, after published notice in the Hayti newspaper (Missouri Herald). The order of incorporation was made on December 28, 1972. User by the city of the incorporation thus supposed to have been acquired began at once, specifically, to repeat, as follows: (1) the newly designated mayor and aldermen proceeded to organize and conduct municipal business; (2) the first meeting of the city council was held December 28, 1972 and meetings were held on a regular bi-monthly basis thereafter; (3) regular elections for city officers were thereafter held and a special election was held in one instance; (4) land was purchased and a city hall was constructed; (5) a staff was employed, including a city administrator, city clerk, treasurer, and city attorney; (6) the city began providing full time police protection, fire protection, regular street maintenance, weekly garbage pickup and street lighting; (7) real estate and personal property taxes, merchants taxes and license fees were assessed and collected; (8) the city developed a twenty-year comprehensive plan for proposed uses of all land within the city limits, including a proposed industrial site located on land owned by plaintiff; (9) the city was recognized by other branches of government, having received $375,000 from the Economic Development Administration for a water system to supply the entire corporate area, which water project is nearing completion ahead of schedule, a grant from the Environmental Protection Agency and the Missouri Clean Water Commission for planning of a municipal sewer system involving a project of approximately $1,000,000, funds from the federal revenue sharing program and its share of the state gasoline tax proceeds, and (10) it entered into franchise agreements with utilities for electric power, telephone and natural gas services. In addition, the city organized a Civil Defense “disaster operations office”, joined the Missouri Municipal League, and participated in state and federal law enforcement assistance programs.

Municipal activities such as above were among those referred to in the Champ opinion, supra, as factors relevant to the application of the laches doctrine.

As said, on December 20,1974, plaintiff filed her petition attacking the incorporation. The record does not show exactly when plaintiff first became aware of the incorporation. It is not unreasonable to say that plaintiff is charged with notice that her land was within the city limits once the municipality was established, the same as all other property owners therein. See State on inf. Bates ex rel. Center Creek Mining Co. v. City of Carterville, 183 S.W. 1093,1095 (Mo.App.1916). In any event, we do know that plaintiff paid the 1973 real estate taxes to the city without objection or protest. This means she was aware of the incorporation at least by some time in 1973. She did not at that time resist the incorporation or attack its validity or change her attitude of acquiescence to one of protest until a few days short of two years, during all of which time the city moved steadily ahead in its user.

There is another factor to be considered here. Even in quo warranto, where the state itself is challenging the existence of the municipality, the state must show some “detriment to accrue from permitting the municipality to continue.” State on inf. Eagleton v. Champ, supra at 528-29. “Generally speaking, the state should show some equity in favor of suddenly blotting out the legal existence of a town after long tolerating it as a working municipality.” State ex rel. King v. Village of Praethersville, supra at 581. As said in State on inf. Wallach ex rel. H. B. Deal & Co. v. Stanwood, 208 S.W.2d 291, 296 (Mo.App.1948), “[t]he equities revealed by the evidence show that the corporate existence of this village had gone unquestioned for over ten years, during which time it had grown and prospered. It has elected its officers annually, levied taxes, contracted for water and fire protection, put up street signs, repaired streets, caused fire hydrants to be installed, and enacted ordinances. It is not in debt but, on the contrary, it has a fair balance in the bank. These are the equities that favor the village, while on the part of the relator . he brings this action to render void the existence of the village so that he will be unhampered. . . . Villages are important segments of our political structure affording those citizens with common interest who live in close relationship with each other the means through which their local problems can be solved, the law enforced, and community interests advanced. The courts are hesitant to say that an omission or error in the incorporation of a village brought to attention many years after it occurred makes a nullity of the village’s corporate existence and its officers usurpers of powers and duties that do not in law exist. The equities must strongly favor the State before it can be so held . . . .”

Again, if the state itself must show strong equity in its favor when it is proceeding with a direct attack in quo warran-to, no less should be required of a private individual making a collateral attack against the village or municipality.

In Champ, supra, in holding the state barred by laches, we looked to the extent of reliance upon the corporate existence of the municipality and the absence of any foreseeable detriment to accrue to the state or the public from permitting the municipality to continue. In the present case a private taxpayer has waited two years following incorporation to challenge collaterally the validity of Hayti Heights. She paid the city real property taxes for the initial year of incorporation without objection, but now decides to avoid further taxes by having the city declared out of existence. This would serve her personal interest on one hand, but it would adversely affect well over a thousand persons on the other hand who live in Hayti Heights, to say nothing of the chaos it would produce in the undoing of over five years of municipal existence. It would render lifeless a community government which has been providing to its citizens city service such as water, police and fire protection, street improvements and garbage collection, none of which they had when they first sought to become an incorporated town.

Plaintiff has made no averment with respect to any foreseeable detriment to the state or the public on account of the continued corporate existence of Hayti Heights and none comes to mind. We have already pointed out the reliance of others, including the state and federal governments, upon the validity of the Hayti Heights incorporation and the record of continued, active municipal existence. The ownership of public property and facilities, the responsibility for operation of the water system, or perhaps its abandonment, the loss of value of all of the funds which have gone toward the planning of a sewer system, the obligations under numerous contracts and the ownership of monies in the possession of the city are but a few of the multitudinous problems which would be created by the invalidation of the incorporation of the city. The public peace of the community and security of person and property would be impaired, leaving the citizens without organization, administration, or corporate privileges, with no compensating benefits elsewhere, save leaving plaintiff unhampered. On balance the equities are strongly in favor of the town.

Application of the doctrine of laches is entirely justified as a bar to plaintiff’s challenge to the corporate existence of Hayti Heights.

II.

In Champ, supra, the fact that the attempted incorporation would otherwise have been declared null and void did not stop this court from holding that by reason of its laches the state would not be permitted to succeed in setting aside the incorporation. Plaintiff nevertheless persists in her contention that incorporation of Hayti Heights was null and void on its face. Even if there were no question of laches in the case, plaintiff necessarily must claim the incorporation is void, because if Hayti Heights attained a de facto status, plaintiff concedes she would then have no standing to maintain a collateral attack. Repeatedly, this court has recognized and applied the doctrine that the existence, use and exercise of a franchise granted by the state including the existence and legality of a municipal corporation can only be challenged directly by the sovereign through the use of an information in the nature of quo war-ranto. White v. City of Columbia, 461 S.W.2d 806 (Mo. banc 1970); Three Rivers Junior College District of Poplar Bluff v. Statler, 421 S.W.2d 235 (Mo. banc 1967); State ex rel. Junior College District of Sedalia v. Barker, 418 S.W.2d 62 (Mo. banc 1967); Spiking School District v. Purported “Enlarged School District R-11, DeKalb County Missouri", 362 Mo. 848, 245 S.W.2d 13 (1952). We here reaffirm our holding in the foregoing cases.

To establish that Hayti Heights did not attain de facto status, plaintiff asserts the following violations of the incorporation statutes: failure properly to request annexation as a precondition to separate incorporation; failure properly to date each signature on the petitions for incorporation; failure to designate polling places for the incorporation election; failure to file a proper plat; inclusion of too large an area of farm land on the incorporation; failure to state facts showing that the proposed city shall have the ability to furnish normal municipal services within a reasonable time, and failure to notify plaintiff of the commencement and conclusion of the incorporation proceedings, which plaintiff claims deprived her of her property without due process.

The claim that the petitioners did not properly request annexation to the city of Hayti as a precondition to separate incorporation, as required by § 72.130, is not valid. Plaintiff argues that what was presented to the city council of Hayti was not a petition, as it was couched in terms of the desire of the residents of Hayti Heights community to see their area developed with water, sewers, street and adequate housing. However, there would be no point in presenting such a request to Hayti unless the area were to be annexed to Hayti. Hayti would have no way or incentive to supply such services to unannexed areas. However denominated by the petitioners, it is undisputed that the city council of Hayti denominated and treated the document as “a petition for annexation of that community into the City Limits of Hayti so as to secure water, sewer, fire protection, police protection, street improvements, garbage collection and other city services.” In addition, the minutes of the meeting of the Hayti city council of October 17, 1971, defendants’ exhibit 1 attached to defendants’ answer to interrogatories, disclose the opinion of the petitioners that it might be advantageous for the Hayti Heights community to incorporate as a separate town, which it was pointed out could not be done without the consent of the Hayti city council. Accordingly, the council thereupon voted unanimously to grant the consent. There is no merit, therefore, to the contention that what was presented to the council was not a petition within the meaning of § 72.130.

As to plaintiffs’ claim that the incorporation petitions were void for the reason the signatures were not dated, we point out, first, that § 72.080, RSMo (Supp.1975) provides how an unincorporated area may become incorporated. One requirement is the presentation to the county court of a petition containing certain information by qualified electors equal to 15% of the votes east in the last gubernatorial election in the area in question. If the county court is satisfied that the required number of qualified electors has signed the petition, it is to call an incorporation election, and if the incorporation carries, then the county court is to declare the area incorporated. It is important to note that the record shows that the county court found and declared that said petition had been filed “in accordance with Sec. 72.080”, a judgment which is conclusive in a subsequent collateral attack, as discussed later herein.

Section 72.132, RSMo (Supp.1975) deals further with the petition. Plaintiffs objection and also that of the trial court is based upon the failure of the petition for incorporation to set forth the day, month, and year on which each signature was affixed as required by § 72.132(1); from this plaintiff argues that it follows there was no way to determine from the petition itself that it was filed within 280 days of the first signature and therefore the petition for incorporation was “absolutely void.”

Section 72.132 reads as follows:

1. Every inhabitant signing such petition shall state his street address or rural post office box number and route together with the month, day and year on which he affixed his signature thereto.
2. Every such petition shall be presented to the appropriate county court or county council within two hundred eighty days following the date on which the first signature was affixed to such petition, or any part thereof. Failure to so present such petition within the foregoing time period shall render such petition absolutely void.

However, the statute does not say that petitions containing signatures without giving the date of each signature are void. What the statute says is that failure to present the petition within 280 days after the first signature is what makes it void. Nor does the statute say that the only way the county court can determine the timeliness of presentation of the petition is by computing the 280 days by examining the petition alone, so that lack of dates on the signatures would leave the county court powerless to act in favor of incorporation. The sanction of subsection (2) applies upon a failure “to present such petition within the foregoing time period” and not to a failure to date each signature.

The county court was obligated to know that those who signed were qualified electors and that the petition was not stale. Unless we are to presume the county court violated its duty, we know that in the instant case the county court was satisfied the signers were qualified electors and that the petition was presented within 280 days of the first signature, because the court ordered an incorporation election, something it is empowered to do only upon presentation of a petition by the required number of qualified electors within 280 days of the first signature.

The county court may have made this determination by its own investigation or knowledge, by questioning, by asking the signers, or talking to Mayor Humes, or by other means of inquiry to ascertain (1) that the signers were qualified electors and (2) the date when the first signature was affixed. There is no requirement that the county court be limited to the petition itself. In fact, even were the signatures dated, the county court might not be satisfied that the dates on the petition were actually the dates on which the signatures were affixed. The requirement of subsection (2) is related to the date on which the first signature was affixed thereto, not the date which might be given as that date.

Subsection (1) is for the benefit and convenience of the county court and if the county court is satisfied otherwise that subsection (2) is met, failure of the signers to date their signatures does not make the petition, or the election, or the order of incorporation, void.

While no Missouri case squarely in point has been cited or found, the case of People ex rel. Bourdette v. City of Belmont, 100 Cal.App. 537, 280 P. 540 (1929) is instructive. In Belmont, a California statute required that the signers of a petition for incorporation “shall at the time of so signing such petition on paper affix thereto the date of such signing.” This the petitioning incorporators failed to do, triggering an action in quo warranto to set aside the incorporation, with allegations made concerning the facial invalidity of the petition similar to those raised here. The California court analyzed the statute and found that while “noncompliance therewith is a justification for refusal by the proper officer to certify as sufficient the names of the signers as to whose signatures the dates of signing are not affixed . . nevertheless

[Wjhere the officers whose duty it is to determine the sufficiency of the petition from the registration records found the same to have been signed by the requisite number of qualified electors, the fact that the dates of signing were not affixed by them but by another will not render void the proceedings based thereon . In other words, the provision of the statute requiring signers to petitions “to affix thereto the date of such signing,” while mandatory on the petitioners, is for the benefit or convenience of the clerk whose duty it is to check the signatures on the petition with the registration records to determine whether or not the persons signing are qualified electors, and while the clerk is not required to go beyond an examination of the petition itself . he having done so, and having found the signers of the petition to be qualified, in the absence of fraud his determination of this question is final.

Id. 100 Cal.App. 537, 280 P. at 541.

The court said further: “ ‘. . . the making of the order for the election implies . also that such determination was reached upon proofs satisfactory to the board. The statute makes no provision as to the character of proof essential in such a case . . .’” Id. 100 CaLApp. 537, 280 P. at 542.

Nor does the statute in our case.

As has been said, in the case at bar, the county court declared that said petition had been filed “in accordance with § 72.-080”, into which § 72.132, supra, must necessarily be read. That judgment is conclusive in a subsequent collateral attack, Western Tile & Timber Co., v. Pulliam, 237 Mo. 1, 139 S.W. 144, 148-49 (1911); Lingo v. Burford, 112 Mo. 149, 20 S.W. 459 (banc 1892). In Lingo, a collateral challenge to drainage construction as authorized by the county court, the county court recited that “due notice has been given according to law” without any record as to the basis for its determination. We said then 112 Mo. 149, 20 S.W. at 460:

That the county court was only authorized to entertain the proceeding to condemn plaintiff’s land for the road, upon notice given as required by the statute, . is not to be questioned, but it is a well-settled principle that, where the jurisdiction of an inferior court depends upon a fact which said court is required to ascertain and settle by its decision, its decision is conclusive as against a collateral attack . . . Twenty days’ notice of this application was required. The statute required “proof of notice having been given as required.” The county court was the tribunal authorized to hear and determine the sufficiency of the proof. It was not required by law to spread on its record the evidence by which it ascertained that notice had been given. It did find and spread on its record that “notice had been given according to law.” This was a fact in pais, to be established by evidence, and its power to proceed further in the case depended upon the giving or failure to give this notice. It judicially ascertained it was given, and we think that it is conclusive as against a collateral attack.

In In re Village of Lone Jack, 419 S.W.2d 87, 90-91 (Mo. banc 1967), we agreed with the holding of the Kansas City Court of Appeals in In re Proposed Incorporation of the Village of Pleasant Valley, 272 S.W.2d 8 (Mo.App.1954). Pleasant Valley held that doubt shall be resolved in favor of the order of the county court on the question of whether the petition for incorporation was signed by the required number of taxable inhabitants, although the record did not contain evidence on that question.

Such is the case here. The legislature has vested the county court with jurisdiction to declare a town incorporated upon being satisfied as to certain facts. The county court determined that the petitions challenged here were not stale and were filed in accordance with the statute. Section 72.132(1), supra, is for its benefit and convenience only and it concluded, notwithstanding the absence of dates, that the petitions were valid. That finding, in this collateral proceeding, is conclusive. Thus in the context of a legal challenge to the sufficiency of the petitions, the violations of the language of subsection (1) should not trigger a finding that the incorporation was a nullity. See E. McQuillin, The Law of Municipal Corporations § 3.46 (3rd ed. 1971).

As to the claim that the county court failed to designate polling places for the incorporation election, one of the plaintiff’s own exhibits — one of the answers of defendants to plaintiff’s interrogatories — is a copy of the notice of special election as ordered by the county court on November 13, 1972. This order designates the polling places and also specifies the hours between which the polls shall be open. In addition, plaintiff put into evidence the order of the county court appointing the judges and clerks, the order for their payment, and the order casting up the ballots. Plaintiff’s witness, John M. Alford, county clerk, testified there was no order of the county court designating a polling place in the bound records or anywhere else in his records, which plaintiff contends makes the entire election null and void. At the most, now that the election is over, with no claim that any voter was misled or deceived by the claimed failure of the county court to issue a separate order designating the polling places, in addition to the order it did make for notice of the election (wherein the polling places were plainly designated) this is a procedural irregularity which does not void the election. See State ex inf. Fleming ex rel. Alexander v. Zimmerscheid, 559 S.W.2d 178 (Mo. banc 1977).

As to the alleged inclusion of too large an area in the incorporation, specifically with reference to plaintiff’s 121 acres of farm land, plaintiff has made no showing which would warrant a declaration that the incorporation was thereby void on its face. The proposed area of incorporation was 618 acres with a population of 1,900. The entire area proposed to be incorporated was something less than one square mile, which is not on its face unreasonable or overwhelming. The Hayti Heights community occupies approximately 174 acres and its population as of the 1970 census was 1,232 persons. While we do not know exactly how long Hayti Heights has been in existence as a community, it had existed long enough to have acquired 1,232 persons by 1970. It is safe to say this did not happen overnight.

Plaintiff’s land would be slightly less than one-fifth of the proposed incorporation. Her property is needed as an area for future industrial and commercial locations. It is bounded on the west and south by roads and a portion of the north boundary is the location of the proposed highway 84 by-pass, which will be a heavily travelled route with potential for commercial and industrial development. Scrutiny of the current Missouri Official Highway Map, of which we take judicial notice, shows that such a by-pass would lead directly south and east of Hayti Heights and Hayti into Interstate 55 and Interstate 155.

Simply because there is farm land in the proposed incorporation does not mean that it is void. Section 72.080 is no longer limited to incorporation of unincorporated cites or towns, as was once the case, Petition to Incorporate the City of Duquesne, 322 S.W.2d 857 (Mo.1959). By amendment in 1971 it has been broadened to include “Any unincorporated city, town or other area”. Laws 1971, p. 146, § 1. The issue is whether the rural or agricultural area has a natural connection with and constitutes a part of the unincorporated city or town within the area incorporated by the county court. What evidence there is in the record indicates that the land outside Hayti Heights was within its natural boundaries and that there was a community interest with the pre-existing unincorporated village. There is no evidence to the contrary and under the circumstances this was a matter to be resolved initially by the county court, which ruled the question in favor of incorporation. Certainly the amount of rural or agricultural land included in the incorporation is not so extreme or unreasonable as to make the incorporation void.

As to the contention that there was an insufficient statement of facts in the petition showing ability of the proposed city to furnish normal municipal services within reasonable time, the petitioners cannot be expected to set forth every detail or read the future. Here the petition refers to the past help of Hayti Heights Development Corporation, something which presumably would be known to the county court and the voters, as well as to expected further help from the same source. It also refers to expected help from the Bootheel Regional Planning Commission and the Missouri Department of Community Affairs, both of which are plausible expectations. It refers to anticipated tax and revenue sharing programs, and it is common knowledge that towns and cities do obtain such revenue these days.

While it is true these assurances are rather broad and imprecise, we know from the considerable municipal activity which has taken place in Hayti Heights following incorporation that the claims were not farfetched or made in bad faith. We must bear in mind that the Hayti Heights community was not in the position of an already established town with municipal services which could readily be extended. It had no municipal services. We cannot expect the impossible and such a community necessarily has to lift itself by its bootstraps to some extent. At any rate, we do not believe that the foregoing was insufficient to constitute a colorable compliance with the statute or that it was so lacking in factual quality as to prevent the municipality from achieving de facto status under the facts before us.

The facts before us are that the petition for incorporation filed with the county court received both the approval of the county court and the approval of the voters, which we believe bears on the sufficiency of the petition. “This statute [Sec. 72.080] is not a grant of power to the governing body of counties. It is a grant to the majority of the electors of an unincorporated area of the right to incorporate.” State ex rel. Boone v. Jackson County, 541 S.W.2d 312, 315 (Mo.App.1976).

“We next consider what the obligation or role of the governing body is when a petition to hold an election to incorporate is presented to it. Certainly, the statute requires it to satisfy itself that the required number of qualified electors have signed the petition. Since no other agency is designated and the petition is filed with the governing body of the county, it is apparent that this governing body is required to determine the sufficiency of the statements to be contained in the petition. But nothing in the statute authorizes them to substitute their judgment for that of the electors as to whether or not the proposed incorporation is feasible and beneficial. .

“It appears to us that the function of the governing body is to determine the legality of the proposed incorporation before declaring an election. Whereas it is the function of the voters to determine if the proposed incorporation is feasible and beneficial to their interest.” Id.

“From the Duquesne case we conclude that the respondent could investigate and if it determined that the facts stated in the petition showing that the proposed city should have the ability to furnish normal municipal services within a reasonable time were false, or that the facts stated patently showed that the city could not furnish normal municipal services within a reasonable time, it would be authorized to deny the petition. In fact, it would be its duty to do so to prevent the illegal creation of a city or to prevent the useless expense of holding an election to create a city that was subject to being ousted by a writ of quo warranto. ...” Id. at 316.

In the case at bar, there is nothing to show the county court did not perform its duty. On the contrary, the fact it ordered the election shows that it concluded the petition did conform to the requirements of the statute. Once the proposition was submitted to the voters, their judgment was that the proposed incorporation, as set forth in the petition, was feasible and beneficial to their interest. Plaintiff has made no showing overcoming these evidences of the sufficiency of the petition in all respects.

Furthermore, plaintiff is, in effect, asking us to judge the petition now as it would have been viewed had prohibition been sought in circuit court seeking to prohibit the county court on the basis that the petition was defective in the respect now contended by plaintiff as to furnishing of municipal services. But that time is gone. The county court acted, the election was held, the city was incorporated, and it has since been operating as a city. We necessarily apply a much less exacting scrutiny now than would have been the case earlier. The point is overruled.

Plaintiff’s contention that the plat which was filed with the incorporation petition is so deficient as to void the incorporation is without merit. We have examined the plat and compared it with the metes and bounds description contained in the petition. Section 72.080 does no more than require that the petition be accompanied by a “plat”. The one before us, while not a model, was, when taken with the metes and bounds description, reasonably understandable, we feel sure, by anyone acquainted with the area, as would be true of the county court and the voters. The important thing is that the territorial limits of the proposed incorporation be sufficiently delineated. Here that was done and it is not claimed this aspect of valid city government is missing. City of Hannibal v. Winchester, 391 S.W.2d 279 (Mo.banc 1965). There is no indication that the county court was misled by the plat or that it prevented anyone from knowing the area to be incorporated. City of Cape Girardeau v. Armstrong, 417 S.W.2d 661, 664 (Mo.App.1967). By no means does this plat serve to void the incorporation.

We have no difficulty in concluding that Hayti Heights has attained at least a de facto status as a municipality and so hold. In spite of deficiencies in the course of incorporation, a municipality may nevertheless be recognized as a municipal corporation de facto when there is: (1) a law under which it might lawfully have been incorporated; (2) an attempted compliance in good faith with the requirements of the statute as to incorporation; (3) a colorable compliance with the statutory requirements; and (4) an assumption of user of corporate powers. State ex rel. Hand v. Bilyeu, 346 S.W.2d 221, 230 (Mo.App.1961); E. McQuillin, The Law of Municipal Corporations § 3.48a (3rd ed. 1971); C. Rhyne, Municipal Law § 2-21 (1957). Each of the above elements is abundantly present. No claim is made by plaintiff in her petition of bad faith and no indication of bad faith appears in the record on the part of defendants. Additionally, we observe that plaintiff’s petition accepts the fact that a petition for incorporation was filed, that an election was held, that an order of incorporation was entered by the county court and that all times thereafter the city of Hayti Heights has purported to exist as a municipal corporation and purported to exercise municipal jurisdiction over the farm lands of plaintiff and has levied and assessed real estate taxes on her land.

Plaintiff’s final contention is that she, a non-resident of the area proposed to be incorporated, was deprived of due process because she received no notice or an opportunity to be heard before the county court on the question of whether her land should be included in the proposed area and whether sufficient grounds existed for incorporating Hayti Heights. Plaintiff is aware that § 72.080 contains no requirement of notice either of the filing of the petition or of the intention of the county court to act on the petition. What it does require is an election and, as has been stated, public notice was given of the election and the proposition passed. Non-residents, of course, do not vote in any election.

Plaintiff concedes that the court in In re City of Uniondale, 285 Mo. 143, 150-51, 225 S.W. 985, 987 (1920), held that no notice was required. There the court was considering § 8529, RSMo 1909, the predecessor of § 72.080. Under § 8529 no election was required, merely a petition filed by a majority of the inhabitants, upon which the county court was authorized to declare the city incorporated.

The court said:

No notice of any kind is required. It is not necessary that the petition shall have been on file for any length of time, or even that it shall have been filed at all, before being taken up for consideration by the court. Upon its presentation the court may immediately proceed to determine whether it is signed by a majority of the taxable inhabitants, and, if it is satisfied that such is the case, may make its order of incorporation without further ado. Not only, therefore, is notice not required, but the statute does not contain the slightest implication that the taxable inhabitants of the territory sought to be incorporated, who do not sign the petition, may appear and contest it. It must be borne in mind that this proceeding is not an ‘action,’ within the meaning of the code wherein any person may be a defendant who has or claims an interest in the controversy adverse to the plaintiff. It is a special statutory proceeding. The statute that created the right provides the remedy and prescribes the procedure. It is complete within itself, and it alone, therefore, determines who may be parties. .
It is said that taxpayers who are opposed to incorporating a given territory into a city should be accorded the right to be heard in a proceeding instituted for that purpose, because, if sustained, it subjects them to the burdens of municipal taxation. In answer to this contention it is sufficient to say that the giving or withholding of such right is a matter that rests wholly within the discretion of the Legislature. It is not essential to the validity of the proceeding that all taxpayers who may be affected thereby have their day in court. The Legislature has the power to incorporate territory into a city with or without the consent of its inhabitants . . . provided it does it by general law . . . . And while the county court in passing upon the petition is performing a judicial function, and its pronouncement thereon is a judgment, yet all the agencies invoked by the statute — the majority of the taxable inhabitants, their petition and the county court — taken collectively, is but the instrumentality through which, in the manner prescribed, the legislative power is exercised in creating cities of the forth class.

Also in point is State ex rel. Scott v. Lichte, 226 Mo. 273, 286-88, 126 S.W. 466, 469 (1910), where prohibition was sought to keep the county court from entertaining jurisdiction of a petition praying for the incorporation of Bellflower. The petition was filed under § 6004, RSMo 1899, which authorized the county court to incorporate on a petition signed by two thirds of the taxable inhabitants of the town, with no requirement of election or notice. In answering relator’s contention that this deprived the parties whose lands were to be included in the corporation of their property without due process of law, the court said:

Relator misconceives the purpose of the statute and the purpose of the petition under it in the county court. He is not in any event to be deprived of his property; he is only liable, if the petition should be granted, to have an additional arm of state governmental protection extended over his property, and a tax levied to pay the expense. The state is not required to give notice when it purposes to take action for the better government of its people, or when it will levy taxes. The creation of a municipal corporation is an act of state sovereignty; the corporation is created to aid the state in the exercise of its sovereign power, to preserve the lives, the health, the liberty of its people and the protection of their property — it is an arm of the state. Formerly cities, towns and villages were incorporated only by special acts of the Legislature, and when so the Legislature never waited to notify the owners of the land that it was intending to create a municipal corporation that would include their lands or asked if they had anything to say why it should not be done. No one ever questioned the power of the state to so act without previous notice to the landowners. But in modern times, because the legislative department of the state government has not time to spend in making a special charter for every community that feels the need of a municipal government, and also for the sake of uniformity in such charters, it has with sanction of the constitution passed general laws delegating that governmental power to the courts, and directing how it shall be exercised. . . . Since the state, acting through its legislative department could create a municipal corporation without giving notice to the owners of the property without violation of section 30, article 2 of the Constitution, which says, “No person shall be deprived of life, liberty or property without due process of law,” the state can likewise do so through any other department of its government to which it may choose by its Constitution to delegate the power.

Plaintiff cites Greene v. St. Louis County, 327 S.W.2d 291, (Mo.1959) in support of her claim about lack of notice, but there the statute governing proceedings for the widening of the road required notice to be given and it was on such basis that the court held the notice to be jurisdictional. Section 72.080 does not require notice. As has been said in the cases cited earlier herein, the power to create a municipal corporation is a political function, resting solely in the legislative branch and not subject to due process requirements for notice. See Hunter v. City of Pittsburgh, 207 U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151 (1907); J. A. Bruening Co. v. Liberty Landing Levee Dist. 475 S.W.2d 125 (Mo.1972); Honey Creek Drainage Dist. v. Farm City Investment Co., 326 Mo. 739, 32 S.W.2d 753 (Mo.1930); State ex inf. Gentry v. Hughesville Special Road Dist., 319 Mo. 1246, 6 S.W.2d 594 (banc 1928).

As a part of the political function mentioned above, the legislature decided, as set forth in § 72.080, to let the people in the affected area vote on the proposition of incorporation. An election was held in this case. Plaintiff did not act until after the election went against her. See State ex inf. Fleming ex rel. Alexander v. Zimmerscheid, supra.

III.

Defendants point out, as they have throughout this litigation, that the judgment of the circuit court in the present case, involving as it does a collateral attack on the order and judgment of the county court declaring Hayti Heights to be a city of the fourth class, overlooks the fact that no appeal was taken from the order of the county court, which therefore is res judicata and not susceptible to collateral attack. Defendants rely on In re Town of Blue Summit, 461 S.W.2d 332 (Mo.App.1970).

In the Blue Summit case, the original order of incorporation of the town of Blue Summit was entered by the county court on April 11, 1967. No appeal was taken from this order. Subsequently, on September 19, 1967, the county court amended its order by entering another order of incorporation. Then on April 9,1968, after a third hearing, the county court entered an order affirming the original April 11 order as amended by the September 19 order. It was from the April 9, 1968 order that the opponents of the incorporation appealed to the circuit court. The circuit court reversed the county court. The proponents of the incorporation then appealed to the court of appeals, which held that the county court order of April 9, 1968 was null and void because the original order of April 11, 1967 had been final and res judicata and Blue Summit would continue as an incorporated town unless a contrary declaration was made in a direct attack by quo warranto. Of special interest to our case is this language of the opinion:

The proposed town of Blue Summit was judicially declared to be “a body politic and corporate as a town” on April 11, 1967, by order and judgment of the county court entered on that day. The opponents of that action slept on their statutory rights of appeal or review and permitted that judgment to ripen into finality. Under the doctrine of res judicata it still stands as a final determination that the town of Blue Summit has been constituted a municipal corporation, and it will so remain until and unless a contrary declaration is made by a court of competent jurisdiction in a direct proceeding in quo warranto instituted for a specific purpose of ousting it from exercising municipal functions. The possibility that the April 11, 1967, judgment may have been erroneous, even on its face, does not render it void or lessen its effect as to res judicata.

Id. at 336.

We agree with the Blue Summit decision on the point under consideration and the order of incorporation of Hayti Heights by the county court in the absence of appeal, is “impregnable to collateral assault” and the circuit court was without authority or jurisdiction to reverse it.

For the various reasons set forth above, the judgment is reversed and remanded with directions to the circuit court to enter judgment in favor of defendants.

BARDGETT, FINCH and RENDLEN, JJ., concur.

MORGAN, C. J., and HENLEY and DON-NELLY, JJ., dissent.

      . This date was more than one year after the action taken by the city council with respect to annexation of Hayti Heights community to the city of Hayti, thus satisfying the waiting time requirement specified by § 72.130.

      . This fact is established from the uncontro-verted affidavit so stating of Mayor David Humes filed by defendants as part of their motion to dismiss and in opposition to plaintiff’s motion for summary judgment. Section 72.132-2 requires the petition to be filed within said 280 day period.

      . Defendants directed interrogatories to plaintiff asking for this information, but these interrogatories, for reasons not disclosed by the record, were never answered by plaintiff.

      . We know from the census figures that the 1970 population of the Hayti Heights community, prior to incorporation, was 1,232. According to the record before us, in 1972 the population of the incorporated area was 1,900.

      . It has since been said in In re Incorporation of City of River Bend, 530 S.W.2d 704, 707 (Mo.App.1975) that appeal under § 49.230 and Chapter 536 are not alternative methods of appeal from a county court’s decision on a municipal incorporation petition, in light of the exception in § 536.100, RSMo 1969 and rule 100.03 as to appeals where “some other provision for judicial review is provided by statute.” The indication otherwise in Blue Summit was treated as dictum.