author: BARDGETT, Judge.

text:
    Richard S. MILLS, Respondent, v. The FEDERAL SOLDIERS HOME of Missouri and the Personnel Advisory Board of the State of Missouri, Appellants.
    No. 59423.
    Supreme Court of Missouri, En Banc.
    April 11, 1977.
    Motions for Rehearing or for Modifications Denied May 10, 1977.

      Louren R. Wood, Asst. Atty. Gen., Jefferson City, for appellants.

      Robert C. Smith, Smith, Lewis & Rogers, Columbia, for respondent.
   BARDGETT, Judge.

The appellants, The Federal Soldiers Home of Missouri and The Personnel Advisory Board of the State of Missouri and its members, appeal from the adverse judgment of the circuit court of Cole county which reversed the decision of the Personnel Advisory Board and remanded the cause to that board with directions to reinstate the respondent Richard Mills to his employment with the Soldiers Home and to determine the compensation due Mills by reason of his discharge from employment on April 27, 1974.

Jurisdiction in this court is asserted under Art. V, sec. 3, Mo.Const., on the basis that it involves a construction of Art. Y, sec. 5, of the Missouri constitution. Specifically, the appellants assert the rule-making power of the supreme court under Art. V, sec. 5, is in question because Rule 100.04 contradicts section 536.110, RSMo 1969. The rule provides that actions for judicial review of contested administrative decisions may be filed in the circuit court of the county of plaintiff’s residence whereas the statute provides, inter alia, that the venue of such actions, at plaintiff’s option, shall be in the circuit court of Cole county or in the county of the plaintiff’s residence.

At the time this appeal was filed, the jurisdictional question was considered on the basis of the jurisdictional statement filed by appellants. We tentatively decided jurisdiction of the appeal was properly in this court because of the assertion by appellants that the circuit court’s action overruling appellants’ motion to dismiss for improper venue under Rule 100.04 necessarily involved a decision that this court exceeded its constitutional rule-making power under Art. V, sec. 5, Mo.Const.

In Taylor v. Yellow Cab Co., 548 S.W.2d 528 (Mo. banc 1977), we accepted the appeal prior to opinion at the request of the Missouri court of appeals, Kansas City district, because the case appeared to involve a conflict between a supreme court rule and a statute, therefore involving the constitutionality of a supreme court rule under Art. V, sec. 5, and we considered the matter to be of general interest and importance.

The instant case also, arguably, involves a conflict between a statute and a rule, an issue which is within the appellate jurisdiction of a court of appeals to resolve if that can be done without directly involving a construction, as opposed to application, of settled principles of the constitution of Missouri.

The first issue is whether an employee of a state agency may obtain review of an administrative decision sustaining his discharge from employment solely in the circuit court of the county of his residence or in either that circuit court or the circuit court of Cole county, at plaintiff’s option. This is a matter of general interest and importance to state employees and agencies throughout Missouri and ought to be definitely settled by this court. Therefore, we will retain and decide this case rather than transferring it to the court of appeals and then transferring it back prior to opinion. Foremost-McKesson, Inc. v. Davis, 488 S.W.2d 193 (Mo. banc 1972).

Mills is a resident of Phelps county, Missouri. He filed his petition for review in the circuit court of Cole county. Mills contends he was entitled to do so under the venue provisions of section 536.110. The Personnel Board contends Mills was restricted to filing his petition for review in the circuit court of the county of Mills’s residence — Phelps county — pursuant to Rule 100.04(a). The circuit court of Cole county overruled the board’s motion to dismiss which motion was premised on Rule 100.04(a). The court’s ruling was based upon the venue provisions of section 536.-110.

Article V, sec. 22, Mo.Const., provides in part: “All final decisions, findings . of any administrative officer or body existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights, shall be subject to direct review by the courts as provided by law; . .

Section 536.010(1) defines agency as “. . . any administrative officer or body existing under the constitution or by law and authorized by law to make rules or to adjudicate contested cases;” and section 536.010(3) defines “contested case” as meaning “. . .a proceeding before an agency in which legal rights, duties or privileges of specific parties are required by statute to be determined after hearing; . . . .”

An employee under the state merit system has a right to a hearing with reference to his dismissal and the Personnel Advisory Board is required by law to determine the matter after such hearing. Section 36.390(5). The dispute between a discharged employee and the employing agency is a “contested case”. Section 536.010(3); Morrell v. Harris, 418 S.W.2d 20 (Mo.1967); Moore v. Damos, 489 S.W.2d 465 (Mo.App.1972); Scism v. Long, 280 S.W.2d 481 (Mo.App.1955). The Personnel Advisory Board is a “state agency” in that it is authorized by law to adjudicate contested cases. Sections 536.010(5) and 36.390(5).

Rule 100.03 makes Rules 100.04 to 100.08 applicable to proceedings for judicial review by an aggrieved party “unless some other provision for judicial review is provided by statute.” (Emphasis supplied.)

Rule 100.04, upon which the board relies, provides in pertinent part:

“(a) Petition for Review When Filed. Proceedings for review may be instituted by filing a petition in the circuit court or court of common pleas of the county of the plaintiff’s residence within thirty days after the mailing or delivery of the notice of the agency’s final decision.”

Section 536.100 entitles a person who has exhausted administrative remedies provided by law and who is aggrieved by a final decision in a contested case “to judicial review thereof as provided in sections 536.100 to 536.140, unless some other provision for judicial review is provided by statute;

Section 536.110 is the statute which governs the institution of proceedings for judicial review which are authorized by section 536.100 and in pertinent part provides:

“1. Proceedings for review may be instituted by filing a petition in the circuit court or court of common pleas of the county of proper venue within thirty days after the mailing or delivery of the notice of the agency’s final decision.

“3. The venue of such cases shall, at the option of the plaintiff, be in the circuit court of Cole county or in the county of the plaintiff or of one of the plaintiff’s residence or if any plaintiff is a corporation, domestic or foreign, having a registered office or business office in this state, in the county of such registered office or business office. The court in its discretion may permit other interested persons to intervene.” (Emphasis supplied.)

The board contends that Rule 100.04(a) is inconsistent with section 536.110(1) and (3), and that the rule supersedes the statute by reason of this court’s rule-making power under Art. V, sec. 5, Mo.Const. A similar contention was made by the state tax commission in State ex rel. State Tax Commission v. Luten, 459 S.W.2d 375 (Mo. banc 1970), and overruled. There is no conflict between Rule 100.04(a) and section 536.-110(1) and (3) when Rule 100.03 is considered. Rule 100.03 makes Rule 100.04 inapplicable if there is some other provision for judicial review provided by statute. As noted supra, the Personnel Advisory Board is a state agency as defined by section 536.010 and its decisions are subject to judicial review as provided in chapter 536, administrative procedure and review. Section 536.110 is part of the statutory administrative procedure and review act and is applicable to the instant proceeding. Therefore the instant case comes within the “unless” clause of Rule 100.03.

The court holds that the venue provision of section 536.110 is applicable to the instant proceeding and the circuit court did not err in overruling the board’s motion to dismiss the petition for review.

The second issue is whether the trial court erred in holding that the appointing authority — Federal Soldiers Home of Missouri — failed to comply with the notice of dismissal provision of section 36.380. The trial court’s finding that the Soldiers Home did not comply with the provision was the basis upon which the decision of the personnel board sustaining the discharge was reversed and the cause remanded with directions to reinstate the respondent Mills with appropriate back pay. The court relied upon Wolf v. Missouri State Training School for Boys, 517 S.W.2d 138 (Mo. banc 1975), in arriving at its decision.

The board made written findings of fact and conclusions of law among which were:

“7. The Superintendent of the Soldiers Home addressed and mailed a written statement to Richard Mills on or about April 22, 1974, setting forth in substance the reasons for dismissal and advising him that he was to be dismissed from his employment at the Home effective April 27, 1974, because of his inability to perform the duties of his position on April 21, 1974, due to alcoholic intoxication.

“8. A copy of the written statement of dismissal was also delivered to Richard Mills on the evening of April 25, 1974, when he reported for work at the Home. On the morning of April 26, 1974, Mr. Mills discussed his impending dismissal with the Superintendent of the Home.”

Respondent filed a memorandum in circuit court in support of his petition for review in which it was stated that, “Plaintiff’s only complaint is that he was not given lawful notice of dismissal as required by Section 36.380 RSMo 1969.” No additional testimony was taken in circuit court. The circuit judge, in his memorandum setting forth the issues and his findings, stated that the sole question to be decided “was there a proper pretermination Notice given the employee”. The parties agreed upon an abbreviated transcript of the hearing before the Personnel Advisory Board which only included the testimony of Superintendent Yokum, the findings, conclusions and decision of the Personnel Advisory Board, and a few exhibits which relate to an incident that occurred in February 1973. It is obvious from the partial transcript of the 'proceedings before the board that there was additional testimony with reference to the question of whether respondent was intoxicated on April 21, 1974, when he reported for work. That was the principal fact issue before the board but was, by the action of respondent, not before the circuit court and is not before this court.

A brief recitation of the testimony of Mr. Yokum is necessary in order to adjudicate the question of whether the Soldiers Home failed to comply with the notice provision of section 36.380.

Mr. Yokum testified that the April 21, 1974, incident was called to his attention by a phone call from another employee to him at his home about 10:30 p. m. on April 21, 1974. On Monday, April 22, 1974, Mr. Yo-kum tried to reach respondent at respondent’s home by phone but was unsuccessful. Mr. Yokum then, on April 22, mailed a notice of suspension and dismissal to respondent. Respondent reported for work on the following Thursday evening, April 25, and “was given a copy of the notice and dismissal and instructed to see me [Yokum] in my office the following morning”. Respondent reported to Yokum the next day, Friday, April 26, 1974, and “I [Yokum] talked with him regarding his suspension and dismissal. It was his position that he had not been drunk.” Respondent told Yo-kum that he had slipped on some water, struck his head which made him dizzy, that he had been suffering from an inner ear infection and had consulted a Dr. James at St. James, Missouri, regarding that condition. Mr. Yokum spoke with other employees and they gave him statements concerning the April 21st incident. The respondent was discharged as of Saturday, April 27, 1974, which was the discharge date stated in the notice.

Respondent retained his present counsel and appealed his dismissal to the Personnel Advisory Board on May 6, 1974. That board held the evidentiary hearing at which Mr. Yokum testified as set forth supra. Respondent did not testify. Respondent did not personally or by his attorney raise any questions about, nor in any way contest, the validity of the prior notice of discharge in any of the proceedings before the board. The notice was not put into evidence as an exhibit before the board.

Indeed, it clearly appears from the proceedings before the board that there was simply no issue as to the content, method of serving, or timeliness of the notice of suspension and discharge.

Section 36.380 provides in part, “No dismissal of a regular employee shall take effect unless, prior to the effective date thereof, the appointing authority gives to such employee a written statement setting forth in substance the reason therefor and files a copy of such statement with the director.”

The testimony of Mr. Yokum that respondent was given a copy of the notice of dismissal on Thursday evening, April 25, 1974, and told to report to Mr. Yokum the next morning was hearsay but there was no objection by respondent to that testimony.

Section 536.070, which applies to an evi-dentiary hearing before an agency (Personnel Advisory Board) and prescribes certain rules with respect to evidence, states in part: “In any contested case: (8) Any evidence received without objection which has probative value shall be considered by the agency along with other evidence in the case.”

Hearsay testimony, when not objected to, may be considered for whatever it is worth. Williams v. Cavender, 378 S.W.2d 537, 541 (Mo.1964); State ex rel. State Highway Commission v. Williams, 289 S.W.2d 64, 66 (Mo.1956). State ex rel. DeWeese v. Morris, 359 Mo. 194, 221 S.W.2d 206 (1949), relied on by respondent is not in point because there the appellant objected to the hearsay when it was offered and this court held the objection should have been sustained.

The Personnel Advisory Board was entitled to consider the testimony of Mr. Yo-kum that respondent had been given a copy of the notice of dismissal on Thursday, April 25, 1974, as evidence that such was done. Section 536.070; Williams v. Cavender and State ex rel. State Highway Commission v. Williams, supra.

But there is another and perhaps more important reason why the trial court erred in reversing the decision of the Personnel Advisory Board. The respondent, as noted supra, made no contention before the board that the notice of dismissal was in any respect insufficient in service, content, or timeliness. The hearing before the board proceeded on the basis that the procedural provisions of section 36.380 with respect to notice were not being contested.

In United States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33, 73 S.Ct. 67, 97 L.Ed. 54 (1952), a party raised for the first time on appeal to the district court the issue of whether a hearing examiner had been improperly appointed. With respect to this contention the Supreme Court stated at 36-38, 73 S.Ct. at 68.

“. . . The issue is clearly an afterthought, brought forward at the last possible moment to undo the administrative proceedings without consideration of the merits and can prevail only from technical compulsion irrespective of considerations of practical justice.

“We have recognized in more than a few decisions, and Congress has recognized in more than a few statutes, that orderly procedure and good administration require that objections to the proceedings of an administrative agency be made while it has opportunity for correction in order to raise issues reviewable by the courts. Simple fairness to those who are engaged in the tasks of administration, and to litigants, requires as a general rule that courts should not topple over administrative decisions unless the administrative body not only has erred but has erred against objection made at the time appropriate under its practice.

“. . . [W]e hold that the defect in the examiner’s appointment was an irregularity which would invalidate a resulting order if the Commission had overruled an appropriate objection made during the hearings. But it is not one which deprives the Commission of power or jurisdiction, so that even in the absence of timely objection its order should be set aside as a nullity.”

In First-Citizens Bank & Trust Co. v. Camp, 409 F.2d 1086, at 1088-1089 (4th Cir. 1969), the court said: “At the outset, we note that at the administrative stage, First-Citizens lodged no objection to the successive scheduling of hearings on the two applications, nor the composition of the hearing panel. Its right to raise at the judicial level procedural objections not advanced before the administrative agency is suspect, because, ordinarily, a litigant is not entitled to remain mute and await the outcome of an agency’s decision and, if it is unfavorable, attack it on the ground of asserted procedural defects not called to the agency’s attention when, if in fact they were defects, they would have been correctible at the administrative level. [Citing cases.]”

If respondent had raised the question of the sufficiency of the notice before the Personnel Advisory Board, one of two things could have then occurred. The Soldiers Home could have introduced further evidence on the matter and even called the employee as a witness to testify on the point. If the board then found that the notice provision of section 36.380 had not been complied with, it would have reversed the discharge and the Soldiers Home could have begun the procedure for discharge anew. If the board found the statute had been complied with, it would have overruled the employee’s objection to that matter and the issue would have been preserved for review in circuit court. In either event, the point would have been raised at the appropriate time and at a time when the defect, if any, could have been considered by the appropriate agency — the Personnel Advisory Board.

The general rule is that a court should not set aside administrative actions unless the agency has been given a prior opportunity, on timely request by the complainant, to consider the point at issue. Coffey v. Jordan, 107 U.S.App.D.C. 113, 275 F.2d 1, 2 (1959). This, however, is subject to exceptions as recognized by the United States Supreme Court in Hormel v. Helvering, 312 U.S. 552, at 557, 61 S.Ct. 719, at 721, 85 L.Ed. 1037 (1941), wherein it is stated:

“. . . There may always be exceptional cases or particular circumstances which will prompt a reviewing or appellate court, where injustice might otherwise result, to consider questions of law which were neither pressed nor passed upon by the court or administrative agency below. See Blair v. Oesterlein Machine Co., 275 U.S. 220, 225, 48 S.Ct. 87, 88, 72 L.Ed. 249.

“Rules of practice and procedure are devised to promote the ends of justice, not to defeat them. A rigid and undeviating judicially declared practice under which courts of review would invariably and under all circumstances decline to consider all questions which had not previously been specifically urged would be out of harmony with this policy.”

None of the exceptions noted above apply to the instant case. Respondent was represented by counsel at the board’s hearing and was afforded the opportunity to contest the notice. There was ample evidence that he received an adequate and timely notice. No injustice results from applying the general rule in this case.

Respondent places principal reliance upon our recent decision of Wolf v. Missouri State Training School for Boys, supra. Wolf was discharged by the training school and appealed to the Personnel Advisory Board contending, before that board, that he had not been given a notice of dismissal prior to the date of discharge. This court upheld Wolf’s contention but the important distinguishing factor between Wolf and the instant case is that Wolf raised the point at the appropriate time before the board, whereas here the employee did not do so.

The reasoning of United States v. L. A. Tucker Truck Lines, Inc., First-Citizens Bank & Trust Co. v. Camp, and Coffey v. Jordan, supra, is sound and applicable to this case.

The court holds (1) there was substantial and competent evidence to support the Personnel Advisory Board’s finding that respondent had been given a copy of the written statement of dismissal on the evening of April 25,1974, when he reported for work at the Soldiers Home and that respondent discussed his impending dismissal with the superintendent on April 26, 1974, and (2) because respondent failed to raise any issue with respect to the adequacy of notice before the Personnel Advisory Board, he cannot raise that point for the first time on judicial review in the circuit court.

The judgment of the circuit court is reversed and the cause remanded with directions to enter judgment sustaining the decision of the Personnel Advisory Board.

SEILER, C. J., and MORGAN, HENLEY, FINCH and DONNELLY, JJ., concur.

RENDLEN, J., not participating because not a member of the court when cause submitted.

      . All citations are to RSMo 1969 unless otherwise indicated.

      . The transcript of the circuit court proceedings contains a copy of respondent’s application for appeal to the Personnel Advisory Board. This was not introduced during the hearing in circuit court but was filed with appellants’ post-judgment notice to amend judgment and opinion. The transcript was approved by the parties and no exception to the inclusion of this document was taken. The application for appeal which was prepared by respondent’s attorney and signed by respondent on May 6, 1974, acknowledges that a notice of dismissal was given to him. He stated, “The notice of suspension or termination was based upon the charge that the appellant [Mills] reported for work in an intoxicated condition. The true fact situation is that the appellant had had nothing to drink in the way of alcoholic beverages. The discharge is not for the good of the service.”


source: Caselaw Access Project

author: HENLEY, Judge.

license: Public Domain

text:
    Nolan CHAPMAN, Jr. and Larry Sherrow, Plaintiffs-Respondents, v. Bill HOYT et al., Defendants-Respondents, and John C. Danforth, Intervenor-Appellant.
    No. 59565.
    Supreme Court of Missouri, En Banc.
    April 11, 1977.
    Rehearing Denied May 10, 1977.

      Walter Nowotny, Jr., Asst. Atty. Gen., Jefferson City, for intervenor-appellant.
    Robert B. Paden, Pros. Atty., Chillicothe, for respondents.
   HENLEY, Judge.

This case presents the question of whether the provision of § 49.010, RSMo 1969 requiring that the division of a county into two county court districts be made “without dividing municipal townships” violates the constitutions of the United States and the State of Missouri in that it prevents division into districts “as near equal in population as practicable” and results in dilution of the weight of the vote of residents of one district contrary to their rights under the equal protection clause of the Fourteenth Amendment and Mo.Const. Art. I, § 2.

Livingston county, third class, has adopted the alternative form of county government provided for in Chapter 65 (§§ 65.010-65.620) known as the “township organization” form. It is divided into 13 townships and, for the purpose of electing members of the county court, it is also divided into two districts known as the eastern district and the western district. Its county court is composed of three members: a presiding judge elected by the qualified voters of the county at large; and two associate judges, one elected by the qualified voters of each district. The county population, approximately 15,000, is located in the townships comprising the two districts, as follows:

WESTERN DISTRICT
Blue Mound 431
Cream Ridge 667
Green 353
Jackson 472
Monroe 409
Morresville 408
Sampsel 261
3,001
EASTERN DISTRICT
Chillicothe 10,159
Fairview 426
Grand River 344
Medicine 185
Rich Hill 809
Wheeling 444
12,367

The city of Chillicothe, the county seat, is located in Chillicothe township and both are in the approximate center of the county. As indicated, roughly two-thirds of the county population is in that township and more than nine-tenths of that is in the county seat.

Plaintiffs reside in and are qualified voters of the eastern district. In this action against the judges of the county court and the county clerk (defendants) plaintiffs allege, in substance, that they and others in the eastern district are deprived of their right to a vote for county court judge of substantially equal weight to the vote of every other resident of the county by reason of the prohibition of § 49.010 against dividing municipal townships in the process of dividing the county into two districts. The defendants, admitting the allegations of plaintiffs, join them in attacking the constitutionality of this section and, in this court, these parties join as respondents.

The Attorney General of Missouri intervened as a party under authority of Rule 87.04 and filed pleadings defending the constitutionality of § 49.010.

The trial court, having concluded as a matter of law it was impossible to divide the county into two districts of contiguous territory substantially equal in population “without dividing municipal townships,” declared this portion of § 49.010 unconstitutional. The court then entered judgment that the county court divide the county into districts as required by § 49.010, and directed that this division be made without regard to township boundaries.

There is no real issue in this case as to whether the population of the county is malapportioned between the two existing districts; intervenor-appellant tacitly concedes in hi3 brief that it is.

Intervenor-appellant contends the trial court erred in reaching the constitutional question and declaring a portion of § 49.010 unconstitutional. He argues, and attempts to demonstrate, that it was not necessary to decide the constitutional question. He does this, first, by stating that the townships of counties organized under Chapter 65, known as the “township organization” form of county government, are not “municipal” townships within the meaning of § 49.010; that the only counties with “municipal” townships are those organized under § 47.-010; therefore, he says, redistricting and reapportionment of Livingston county is not inhibited by the restriction of § 49.010 on dividing townships.

We do not agree that the townships of a county organized under Chapter 65 are not municipal townships. Both those established under § 47.010 and those which have elected to adopt the “township organization” form are municipal townships within the meaning of § 49.010, and are subject to its restrictions on dividing townships. In State ex rel. Halferty v. Kansas City Power and Light Co., 346 Mo. 1069, 145 S.W.2d 116, 122[10] (1940) this court, referring to Chapter 86, RSMo 1929 (a predecessor of present Chapter 65), said: “. . . we think it too clear to admit of argument that when the Legislature used the term ‘municipal townships’ in the statutes above referred to it meant subdivisions of a county as that term is generally understood.” See also: Union Township of Dunklin County v. Cotton Hill Township, 294 Mo. 538, 243 S.W. 333, 334 (1922) in which the trial court’s decree, quoted in full in the opinion, refers to these two townships in a county which adopted the “township organization” form of government in 1914 as being “municipal” townships then (1922) and before it adopted that form of county government.

In attempting to demonstrate that Livingston county is not inhibited by the restrictions of § 49.010, intervenor-appel-lant recognizes that under § 65.530 the county court of a township organization county does not have the same broad authority to redistrict by altering township lines as does the court of a county (referred to by intervenor-appellant as a § 47.010 county) which has not adopted the township organization form. Section 65.530 gives the county court authority to alter the boundary lines of townships only upon petition of one-fourth of the voters, and ratification of the proposition thus submitted by two-thirds of the votes cast by the voters, whereas, in a § 47.010 county, the county court may “erect new * * *, subdivide * * *, [or] organize better township lines” without a vote of the people.

Having recognized this difference in the statutory authority of the county courts of counties which do and those which do not have the township organization form of government, intervenor-appellant suggests that a way to avoid the § 49.010 prohibition against dividing townships (and thereby avoid deciding the constitutional question) is for the county court to create § 47.010 townships on top of or in addition to the existing townships. By doing so, he says, the county court may then, on its own motion and without a vote of the people, “erect new townships * * * [with] better township lines” which will lend themselves to a division of the county into two county court districts of substantially equal population without violating § 49.010.

The suggestion is ingenious but hardly permissible. It ignores the fact that the form of government of Livingston county is an alternative form adopted by the electors thereof (§ 65.020) who thereby chose to say through § 65.530 that only they by their vote could thereafter alter the boundaries of townships in their county. Furthermore, the statutes relative to county and township government generally (Chapters 46 through 67), and those applicable to third and fourth class counties in particular, do not contemplate or permit the existence of two types of township government at the same time, or townships of one size and shape for one purpose superimposed upon another of a different size and shape for another purpose. For the courts to authorize what intervenor-appellant suggests would be to legislate. We decline the invitation.

Insofar as § 49.010 prevents redistricting of the county into two county court districts, of contiguous territory, as near equal in population as practicable, it violates the equal protection clause of the Fourteenth Amendment of the United States Constitution.

The judgment is affirmed.

All concur.

      . References to sections of the statutes will be to this revision, unless otherwise indicated.
      Section 49.010 is as follows:
      “The county court shall be composed of three members, to be styled judges of the county court, and each county shall be districted by the county court thereof into two districts, of contiguous territory, as near equal in population as practicable, without dividing municipal townships.”

      . An administrative body; not a court in a juridical sense.

      . Reference is to Missouri Supreme Court rules. See also § 527.110.

      . Section 47.010 is as follows:
      “Each county court may divide the county into convenient townships, and as occasion may require [1] erect new townships, [2] subdivide townships already established, [3] organize better township lines, and may, upon the petition in writing, of not less than twenty-five percent of the legally qualified voters of each township affected, as such vote was cast in the last preceding general election for the office receiving the greatest number of votes in the township or townships affected, [1] consolidate two or more existing townships into one township, or [2] otherwise reduce the number of townships, or [3] change the boundary lines thereof, as may be deemed advisable.”


author: SEILER, Chief Justice. DONNELLY, Judge,

text:
    STATE ex rel. Dale SPRAGUE, Relator-Respondent, v. The CITY OF ST. JOSEPH, Missouri, and F. L. Endebrock, in his capacity as Supervisor of the Department of Public Works of the City of St. Joseph, Missouri, Respondents-Appellants. STATE ex rel. CITY OF ST. JOSEPH, Missouri, and F. L. Endebrock, in his capacity as Supervisor of the Department of Public Works of the City of St. Joseph, Missouri, Relators, v. The Honorable Fred E. SCHOENLAUB, Judge of the Circuit Court of Buchanan County, Missouri, Second Division, Respondent.
    Nos. 59460, 59517.
    Supreme Court of Missouri, en banc.
    May 10, 1977.

      Ronald E. Taylor, St. Joseph, for appellants.
    James H. Counts, St. Joseph, for respondent.
   SEILER, Chief Justice.

These cases come to the writer on reassignment. They involve the question of whether sections 341.010 through 341.080, inclusive, pertaining to plumbers and plumbing, apply to the city of St. Joseph, a constitutional home rule charter city. We hold that they do not by virtue of Art. VI, Sec. 22, which prohibits the general assembly from creating any municipal office or employment or fixing the powers, duties or compensation thereof, for any city framing its own charter under the home rule charter provisions of the constitution.

Sections 341.010 through 341.080, inclusive, provide a scheme of licensing and regulating persons engaged in the business of plumbing in cities with 15,000 or more inhabitants. The statute requires that every person so engaged in cities of the requisite size must possess a certificate from the Board of Plumbing Examiners of the city in which he resides or from the board nearest his place of residence. To this end, the statute establishes three member Boards of Plumbing Examiners in every city with 15,-000 or more inhabitants. It further provides that the board members are to be the chairmen of the city’s board of Health and two plumbers — the plumbers to be appointed by the mayor.

The statute prescribes the terms of the board members and the cost of a certificate, provides for their compensation from the city’s treasury, that certificates shall be valid throughout the state, that no plumbing work shall be done without a permit from the Board of Health, and that cities shall establish rules and regulations for material, construction, and inspection of plumbing work. The statute creates the office of city plumbing inspector, prescribes his qualifications, and provides that he is to be paid by the city. The statute also requires that the board convene and administer an examination over generally specified subject matter. This description is not exhaustive, but only attempts to cover the major provisions of the statute.

Relator Sprague holds a master plumbers license from the Board of Plumbing Examiners of the city of Gladstone, a statutory class type city. Sprague has attempted to acquire plumbing permits from the city of St. Joseph by invoking sections 341.010 through 341.080 but the city has refused to issue him these permits. Sprague claims that although his residence is nearest St. Joseph, Gladstone is the city nearest his residence with a validly constituted plumbing board because a vacancy exists on the St. Joseph board; that therefore his license issued by Gladstone should be recognized by St. Joseph under section 341.050. Sprague filed his petition for a writ of mandamus in the circuit court to compel the proper St. Joseph authorities to honor his Gladstone license, to issue plumbing permits, and to inspect work done pursuant to those permits. The circuit court of Buchanan County issued its alternative writ January 1, 1976, and its peremptory writ on February 25, 1976. The city of St. Joseph appealed the issuance of the writ of mandamus to this court on the basis that jurisdiction lies here under Art. V, Sec. 3 because construction of the state constitution is involved. This is case No. 59460. The city of St. Joseph also filed a petition for a writ of prohibition in this court to prevent the circuit court from enforcing the writ of mandamus. We issued a stop order, followed by our preliminary rule in prohibition. This is case No. 59517. The cases were ordered consolidated in this court.

As will be seen from the following discussion, Sprague’s contentions concerning the alleged vacancy on the St. Joseph board and his justification for his being examined in Gladstone are irrelevant to the material issues of the cases because sections 341.010 through 341.080, inclusive, do not apply to constitutional home rule charter cities.

Art. VI, Sec. 22, provides as follows: “No law shall be enacted creating or fixing the powers, duties or compensation of any municipal office or employment, for any city framing or adopting its own charter under this or any previous constitution, and all such offices or employments heretofore created shall cease at the end of the terms of any present incumbents.”

This section was enacted as part of the 1945 constitution and has remained unchanged. The Missouri courts have held in a number of cases either directly or indirectly that Sec. 22 is a limitation on the power of the legislature with respect to constitutional charter cities.

In State ex rel. Burke v. Cervantes, 423 S.W.2d 791 (Mo.1968), a dispute arose concerning wages and conditions of employment between the St. Louis firemen and the mayor. The firemen called on the may- or to appoint an arbitration board pursuant to the Firemen’s Arbitration Board Act. This act provides that the firemen may request the chief executive of any city, town, or other governmental unit to appoint an arbitration board to hear their disputes and make recommendations. The mayor refused to act and the fireman sought mandamus to compel him to do so. The trial court granted mandamus and the mayor appealed. This court reversed, holding the statute unconstitutional as applied to constitutional charter cities under Art. VI, Sec. 22, supra.

The court said that undoubtedly it was true that by Art. VI, Sec. 22, the city of St. Louis (being a constitutional charter city) was given a broad measure of complete freedom from state legislative control. 423 S.W.2d at 793. The firemen argued that the purpose of the statute was to create statewide uniform labor practices and therefore it was outside the scope of Art. VI, Sec. 22. This is precisely the argument that is being advanced by relator Sprague with respect to plumbing as covered by the sections in question in chapter 341. The court recognized that the majority of cases hold that legislation concerning municipal fire departments is a matter of statewide concern and that a general statute on the subject applies to home-rule municipalities. But the court went on to point out that this was not true where “there is a constitutional limitation upon the legislature concerning interference with the powers and duties of municipal officers such as is contained in Art. VI, Sec. 22 of the Constitution of this state.” 423 S.W.2d at 793. The court held that therefore the mayor could not be required to assume the additional duty of appointing a Firemen’s Arbitration Board; that in working out the grievances of city employees, the mayor was not required to go beyond the comprehensive provisions of the city’s charter on the subject; and that Secs. 290.350 and 290.360, RSMo 1959 (L.1963, p. 415) were unconstitutional and void as applied to constitutional charter cities because they imposed duties upon a municipal officer and created a municipal office.

The Cervantes opinion is based squarely on the prohibition found in Art. VI, Sec. 22, against the legislature creating or fixing powers, duties, or compensation of any municipal office or employment for a constitutional charter city.

In City of Joplin v. Industrial Commission of Missouri, 329 S.W.2d 687 (Mo.banc 1959), there was a proceeding under the Prevailing Wage Act to have the Industrial Commission ascertain the prevailing hourly rate of wages in Jasper county for workmen needed to execute contracts for construction of sewers in Joplin, a constitutional charter city. The commission made its determination over the objections, among others, of the city that the statute was unconstitutional on several grounds, one being that to require the city to stipulate in its contracts the crafts or types of workmen and rates of pay constituted fixing of duties and compensation of municipal employment in violation of Art. VI, Sec. 22. The court held that to construe the statute as applicable to direct employees of public bodies would make it unconstitutional as to all constitutional charter cities by virtue of Art. VI, Sec. 22. The court held further that the act by its terms did not apply to city employees but only to the employees of private contractors doing public works. It is clear that had the act attempted to apply to public employment on public works by a constitutional charter city, the ruling would have been otherwise. In the Cervantes case, supra, the court cited the City of Joplin case as one “where it was said that to construe the Prevailing Wage Act as applicable to direct employees of public bodies would make it unconstitutional as to all constitutional charter cities because of said § 22.” 423 S.W.2d at 793.

In Stine v. Kansas City, 458 S.W.2d 601 (Mo.App.1970), a case cited by relator Spra-gue, the facts were that Kansas City, a constitutional charter city, had adopted an ordinance that repealed certain articles of its building code and enacted a new uniform plumbing code. The new code was silent as to the licensing of journeymen plumbers. Among other complaints, the plaintiffs objected that the new code made no provisions for examining and licensing journeymen plumbers as required by chapter 341. The parties, however, had stipulated that the only issues in the case were two: a declaration of the rights and duties of the parties under the new code and chapter 341, and whether the new code was in violation of chapter 341 for failure to provide for the examination of journeymen plumbers. The city lost in the trial court and on appeal sought to invoke the jurisdiction of the supreme court on the ground that construction of Art. VI, Sec. 22, was involved. The city argued that the application of chapter 341 to a constitutional charter city would be unconstitutional because it undertakes to create and fix the power, duties, and compensation of municipal offices, namely, the board of examiners and plumbing inspector. The supreme court transferred the appeal to what was then the Kansas City Court of Appeals to determine the question of appellate jurisdiction. At 458 S.W.2d 605, that court cites the City of Joplin and Cervantes cases, and declares that those precedents “suggest that a substantively arguable constitutional issue subsists”, but that the city failed to raise the constitutional question at the first available opportunity and the issue was therefore not preserved for review. The court then goes on to decide the case without consideration of the effect of Art. VI, Sec. 22, and relies on the “familiar rule” under the earlier cases that when there is a general law on the subject, the charter of a constitutional charter city or its ordinances must be in conformity with the'state law on the same subject. But the court expressly notes, 458 S.W.2d at 606, that it does not consider the effect of this “familiar rule” when the inconsistency is not between a statute of general concern and a charter or ordinance, but between such a statute and a constitutional provision such as Section 22. The court then again pointed out that this question was not properly raised for appellate review.

In the case before us the question is properly raised, and it is apparent that while the Stine case upholds the provisions of chapter 341 under the restricted appellate review imposed in that ease, Stine does not in any way pass on the constitutional question now before us regarding the validity of chapter 341 as applied to a constitutional charter city in light of Art. VI, Sec. 22.

In Preisler v. Hayden, 309 S.W.2d 645 (Mo.1958), the question was whether the office of License Collector of the City of St. Louis (an office created by statute in 1901) had ceased to exist because of the provisions of Art. VI, Sec. 22, of the 1945 constitution. The court said: “There can be no doubt that Sec. 22 of Art. VI, 1945 Constitution, applied to all offices in cities of the constitutional class created under Sec. 19, Art. VI, 1945 Constitution, because the only offices they can have are municipal offices.” 309 S.W.2d at 647. However, St. Louis is both a city and a county and the court concluded that the office of License Collector must be classed as a county office and therefore, Art. VI, Sec. 22 did not apply. Under the Preisler decision the only offices St. Joseph can have are municipal offices, it being a constitutional charter city. That being the case, the legislature cannot create or establish for St. Joseph a board of examiners of plumbers or say who its members shall be or their duties or compensation or who shall appoint them.

In State ex rel. Lipps v. City of Cape Girardeau, 507 S.W.2d 376 (Mo.1974), cited by relator Sprague, while this court therein stated that the constitutionality of chapter 341 has been established on previous occasions and that it represented a delegation to cities of the state’s police power with respect to plumbing, the court was not dealing with a constitutional charter city (Cape Girardeau is a city of the third class) and the question of whether chapter 341 could validly apply to a constitutional charter city in view of the provisions of Art. VI, Sec. 22 was not before the court, was not discussed, and none of the cases cited in the Lipps case bear on the question. The Lipps case is sound as applied to one of the legislatively created classes of cities, towns, and villages, but it has no bearing on the application of chapter 341 to a constitutional charter city in light of Art. VI, Sec. 22, supra.

We do not mean to say or infer that a constitutional charter city is immune from all legislative action. The contrary is well illustrated by the recent decision of Cohen v. Poelker, 520 S.W.2d 50 (Mo. banc 1975). This case dealt with whether the members of the Board of Estimate and Apportionment of the city of St. Louis could keep members of the public from attending meetings of the board in alleged violation of chapter 610, RSMo Supp.1973, known generally as the “Sunshine Law”. This court affirmed a decree enjoining the members of the board from doing so.

One of the contentions of the board was that the law was unconstitutional as applied to St. Louis because of Art. VI, Sec. 22, supra. The court held that the law represented a legislative determination and declaration of the public policy of the state relating to meetings, records, and votes of all public governmental bodies, a policy of general interest and import, and applicable statewide at all levels of government, including constitutional charter cities. But also it should be noted that the Sunshine Law does not in any way create or fix the powers, duties, or compensation of any municipal office or employment for any constitutional charter city, which is not true of chapter 341. Chapter 341, as applied to a constitutional charter city, would establish a board of examiners of plumbers, determine the manner of selection of the members, impose duties on the mayor, council, and chairman of the board of health, and provide for compensation and prescribe the duties of the members of the board thus created. This would be in violation of the prohibitions of Art. VI, Sec. 22.

Whether a statute does or does not specify the powers and duties of city officials of a constitutional charter city was of central concern in City of St. Louis v. Missouri Commission on Human Rights, 517 S.W.2d 65 (Mo.1974) in determining whether the statute violated Art. VI, Sec. 22. In that case the commission ordered a public hearing on a charge that there was discriminatory treatment by reason of race in the St. Louis fire department. The city then filed a petition for declaratory judgment, contending that the application of chapter 296, RSMo 1969, was unconstitutional as to it by reason of Sec. 22. This court upheld the application of chapter 296 to St. Louis, but in doing so pointed out that no provisions of chapter 296 directly specifies any powers or duty of city officials. Rather, chapter 296 simply requires as a matter of statewide policy that the powers and duties of city officials be exercised in a nondiscriminatory manner and that a decision by the human rights commission on whether the city authorities were correctly applying the general state policy was not “ ‘fixing the powers [or] duties’ of a municipal office, which is what the constitution prohibits.” 517 S.W.2d at 70.

The foregoing cases — Cervantes, City of Joplin, Stine, Preisler, Cohen, and Missouri Commission on Human Rights —all make it quite plain that Art. VI, Sec. 22 is meant to and does prohibit the legislature from creating any municipal office or board or fixing the power, duties, or compensation thereof for a constitutional charter city. It follows that the provisions of chapter 341 purporting to establish in St. Joseph a board of examiners of plumbers, fixing its size, imposing the duty of chairman upon the chairman of the board of health of the city, requiring the mayor to name and the council to approve the other two members of the board, setting their terms and compensation, and prescribing their duties, and further creating the office of plumbing inspector, and prescribing his duties are all unconstitutional and void as applied to constitutional charter cities, including St. Joseph.

The present litigation is before us because the trial court issued its peremptory writ of mandamus ordering the city and its supervisor of the department of public works to honor relator’s master plumber’s license issued by the city of Gladstone and to permit relator to act as though he had such a license from the city of St. Joseph.

Relator has failed to make the showing required for a writ of mandamus for the reason, as set forth above, that the particular statutes, on whose applicability to St. Joseph relator’s claim rests (as otherwise he offers no justification for admittedly not taking the examination at the city1 nearest his place of residence), do not apply to St. Joseph under Art. VI, Sec. 22, and for the further reason that relator has not in any event satisfied the established requirements for mkndamus.

A court will issue a writ of mandamus only when it is shown that the person requesting the writ has a clear and unequivocal right to the relief requested. State ex rel. Breshears v. Missouri State Employees’ Retirement System, 362 S.W.2d 571, 573 (Mo. banc 1962). “It is elementary, of course, that mandamus does not issue where the right sought to be enforced is doubtful. . . . [T]he burden is on the relator to show his right to the remedy.” State ex rel. Purdy Reorg. School Dist. No. 11 v. Snider, 470 S.W.2d 805, 809 (Mo.App.1971). “A litigant asking relief by mandamus must allege and prove that he has a clear, unequivocal, specific right to a thing claimed. He must show himself possessed of a clear and legal right to the remedy.” State ex rel. Porter v. Hudson, 226 Mo. 239, 265, 126 S.W. 733, 740 (banc 1910). “ ‘The office of mandamus is to execute not adjudicate.’ ” State ex rel. School Dist. No. 24 of St. Louis County v. Neaf, 344 Mo. 905, 911, 130 S.W.2d 509, 511 (Mo. banc 1939).

Relator Sprague’s petition is based on the allegation that he received a master plumber’s license from Gladstone on No'vember 19, 1975; that since Sec. 341.050 provides that a license is to have force and effect throughout the state, St. Joseph is bound to honor it; that this is a purely ministerial duty. The petition makes no mention of Sec. 341.030 which requires persons to obtain a certificate from the board of the city where they reside or from the board nearest their place of residence. There is no allegation in the petition that Gladstone is the city nearest his place of residence. The petition falls far short of showing a clear right in relator to use his Gladstone license in St. Joseph.

The return of respondents alleges relator failed to obtain a certificate from the board nearest his place of residence as required by Sec. 341.030; that to issue the writ would require respondents to circumvent the statute; also that relator has twice failed the St. Joseph examination; that the St. Joseph board is the one nearest his residence; that chapter 341 does not apply to a constitutional charter city under Art. VI, Sec. 22.

The reply of relator Sprague to the return alleges that when he obtained his license from Gladstone, St. Joseph did not have a valid board because the term of the board’s journeyman plumber, Milton Jones, had expired, and hence, Gladstone was the city nearest his residence which regulated plumbing at the time. The reply denied that relator had twice failed the St. Joseph examination, but did allege he had taken it three times and had never obtained a license.

There is no showing on these pleadings that relator has an unequivocal right to the remedy sought. He is trying to adjudicate, not execute.

Nor is relator Sprague’s position as to mandamus improved by the record at the trial (although the facts and conclusions related below are somewhat in the nature of false issues, inasmuch as we have held that sections 341.010 through 341.080 do not apply to St. Joseph). The parties stipulated that relator Sprague’s place of residence is closer to St. Joseph than it is to Gladstone; that the St. Joseph board consisted of three members and the term of Jones, as journeyman plumber, expired August 29, 1975, and his successor was not confirmed by the city council until December 1, 1975.

At the trial relator Sprague testified he made application to the building commissioner for plumbing permits, tendering his Gladstone license;- that the building commissioner told him the next day that nothing could be done until a board was appointed and also said there was a vacancy on the board and that they did not have an acting board. The city offered to establish there was no actual vacancy on the board during the period August 30, 1975, to December 1,1975, and that Jones, the journeyman plumber, continued to hold office after August 30, 1975, but the court sustained relator’s objections.

There still is no clear showing on the record before us that relator Sprague is entitled to mandamus to permit him to use his Gladstone license in St. Joseph. Again he is trying to adjudicate, not execute. The fact is that relator has taken the St. Joseph examination three times without obtaining a license. His claim rests on the technical point that he took a plumber’s examination in a town not nearest his residence at a time when supposedly the town nearest his residence did not have an operative board. He does not say that he offered to take the examination in St. Joseph between August 30 and December 1, 1975, and was refused. Relator makes no claim that St. Joseph purposefully or with intent to injure or harass him failed to fill the alleged vacancy sooner. He testified that the building commissioner told him there was “a vacancy in the board and they did not have an acting board”. This testimony is merely a conclusion by a layman. The stipulation of the parties does not state there was a “vacancy” or that there was not an acting or operative board. It states only that the term of Milton Jones expired August 29, 1975, and that his successor was not confirmed by the city council until December 1, 1975. In actuality, relator Sprague is making a collateral attack on the validity and existence of a board in St. Joseph with no showing whatever that he is in a position to make such an attack or that the St Joseph board would have refused to act had he made application during the August 30— December 1, 1975, period or that it could not legally have acted on his application had he made one.

We can take judicial notice of the city charter of St. Joseph, see Art. VI, Sec. 19, 1945 Constitution. Article XVI of the St. Joseph charter deals with boards and commissions. Section 16.1 provides all boards and commissioners shall consist of five members appointed for terms of five years and until their successors are appointed and qualified. Under these provisions the expiration of the term of Milton Jones would not make the board inoperative. He would continue to be a legal member of the board until his successor was appointed and qualified.

For all the foregoing reasons relator does not meet the requirements for mandamus. Therefore, in case No. 59460 the judgment of the circuit court granting a peremptory writ of mandamus is reversed and the writ is quashed. The writ of mandamus having been quashed, the petition for a writ of prohibition in case No. 59517 is dismissed as moot.

MORGAN, BARDGETT and FINCH, JJ., concur.

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

HENLEY, J., dissents and concurs in separate dissenting opinion of DONNELLY, J.

RENDLEN, J., not participating because not a member of the court when cause submitted.

DONNELLY, Judge,

dissenting.

The principal opinion’s analysis of Mo. Const. Art. VI, § 22, and its effect on home rule charter cities, is scholarly and interesting, but it is irrelevant in this case. The essential and determinative question here is whether the city of St. Joseph should be compelled “to honor relator’s master plumber’s license issued by the city of Gladstone * * * >>

If I understand the facts: (1) there is no Chapter 341 board of plumbing examiners in St. Joseph; (2) the nearest such board of plumbing examiners to relator’s place of residence is in Gladstone; (3) relator procured a certificate from the Gladstone board; and (4) the city of St. Joseph refuses to honor it.

Section 341.030, RSMo 1969 provides that persons desiring a certificate to work as a plumber may apply “to the board nearest their place of residence.”

Section 341.050, RSMo 1969 provides that a certificate, when issued, “shall be valid and have force throughout the state *

I find no ambiguity in the statutes. Relator went to the board nearest his place of residence, procured a certificate, and now asks that it be considered valid in St. Joseph, as the statutes mandate.

I would affirm the action of the trial court and, therefore, respectfully dissent.

      . All statutory references unless otherwise indicated are to Revised Statutes of Missouri, 1969.

      . The constitutional charter for St. Joseph was adopted by its voters on October 31, 1961.

      . According to information contained in the 1975-76 Official Manual there are fifteen constitutional charter cities in the state. Their combined population of 1,770,456, based on 1970 census figures, constitutes 54% of the urban population of the state.

      . The fact that chapter 341 predated the 1945 constitution by many years and that St. Joseph did not adopt its charter until 1961, of course, would not mean that offices or boards created under chapter 341 would nevertheless continue in existence, because Sec. 22 specifically provided that all such offices “heretofore created” shall cease at the end of the terms of any present incumbents.

      . Relator Sprague also makes the contention that “the statutory scheme gives statewide acceptance to a certificate or license regardless of which city issues the same”, but we do not believe the legislature had any such intention. If what relator contends were the case, this would encourage “shopping around” by applicants to find the board with the easiest examination or examiners and to use that method to obtain a certificate. This would not provide much protection to the public. Furthermore, the statutory provisions are plainly the other way. Section 341.050 in speaking of the certificate for the master plumber or the journeyman plumber states that “[s]aid certificate shall be valid and have force throughout the state . .” (emphasis supplied). There are only two places where “said certificate” can be obtained and that is by application either to the board of the city where the applicant resides or to the board nearest his place of residence. Section 341.030. There is nothing in the chapter to support the proposition that “said certificate” means one from any city which issues the same.
      It is appropriate to remark, also, that the reciprocity called for by section 341.050 is limited by section 341.020 to plumbing to be performed in cities of 15,000 or more population and by implication is likewise limited to cities where section 341.040 boards of examiners exist. Otherwise, plumbers licensed by such boards could demand reciprocity in a constitutional charter city, while plumbers licensed by a constitutional charter city would have no such right with respect to a statutory type city, a result which would not make for orderliness or rationality in regulation and one which we do not believe the legislature intended.


text:
    Robert Charles WRAGGS, Appellant, v. STATE of Missouri, Respondent.
    No. 59704.
    Supreme Court of Missouri, En Banc.
    May 10, 1977.

      See also, 496 S.W.2d 88.
    Kevin M. O’Keefe, St. Louis, for appellant.
    Robert M. Sommers, Asst. Atty. Gen., Jefferson City, for respondent.
   BARDGETT, Judge.

On application of respondent State of Missouri, this cause was transferred by this court from the Missouri court of appeals, St. Louis district, after opinion in that court, pursuant to art. V, sec. 10, Mo.Const., as amended 1970, and Rule 83.03. The reason we transferred the case was to consider respondent’s contention that the court of appeals erred in its interpretation of United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), in light of Peterson v. United States, 493 F.2d 478 (8th Cir. 1974), Ryan v. United States, 485 F.2d 295 (8th Cir. 1973), and United States v. Belle, 525 F.2d 25 (8th Cir. 1975), which, in applying Tucker, denied the petitioners’ applications to vacate a sentence previously imposed and to resentence the defendants. The case has been briefed and argued here and the court has concluded that the court of appeals opinion is not in conflict with Tucker, Peterson, Ryan, or Belle. We adopt the court of appeals opinion of Houser, Sp. J., with some additional comments.

Appeal from order denying Robert Charles Wraggs’s Rule 27.26 motion to vacate or correct a judgment rendered and a sentence of 13 years’ imprisonment imposed on March 23, 1972, on a charge of assault with intent to maim with malice.

Appellant was charged and convicted under the Habitual Criminal Act (based on a 1964 conviction of burglary and stealing) in division No. 20 of the circuit court of the city of St. Louis on January 7, 1972. The trial judge, Honorable Daniel T. Tillman, overruled appellant’s motion for new trial on March 23, 1972, and sentenced appellant to the 13-year term, ordering that it run concurrently with four previous sentences. Judge Tillman made specific reference to these prior convictions during the sentencing hearing, stating “I am going to give you time in addition to what you have.”

Subsequently Judge Nangle, who sentenced appellant in the four previous convictions in 1970, sustained a Rule 27.26 motion by appellant (filed in December 1972) attacking the two robbery sentences on the ground that the two victims were robbed in the course of the same transaction and two prosecutions for substantially the same act are not authorized. On the day Judge Nan-gle vacated the robbery sentences appellant repled guilty to one of the robbery charges and was sentenced to six years’ imprisonment by Judge Nangle. The six-year sentence was ordered to run concurrently with the 13-year sentence imposed by Judge Tillman. Thereupon the other robbery charge was dismissed.

Thereafter appellant filed this Rule 27.26 motion in division No. 20 before Judge Tillman, attacking the validity of the 13-year sentence on the principal ground that it was based in part on Judge Tillman’s consideration of an illegal and invalid prior conviction which was later.vacated and set aside. At the conclusion of the hearing on the motion, Judge Tillman stated among other things that the basis for bringing appellant under the Habitual Criminal Act was not the two robbery cases but was the burglary of December 7, 1964; that in fixing a 13-year sentence the judge considered the totality of appellant’s prior convictions, together with information supplied by the state highway patrol indicating appellant’s past involvement with the law. Judge Tillman denied the motion, filing findings reciting that the sentence imposed “was within the court’s sound discretion and was not based on any prior conviction which was unconstitutional”; that “no manifest injustice has been proven by sentencing defendant to a term of thirteen years on the charge of assault with intent to maim with malice,” and that the 13-year sentence was “justified * * * by ⅛6 severity of the crime * * * and the previous conviction for burglary.”

Appellant claims error in the failure of the court to set aside the 13-year sentence “since it resulted from the court’s consideration of previous unconstitutional convictions and sentences,” citing Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948), and United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). Under these controlling decisions we must vacate and set aside the 13-year sentence, for the reason that the record clearly and unequivocally demonstrates that appellant was sentenced “on the basis of assumptions" concerning his criminal record which were materially untrue,” Townsend v. Burke, 334 U.S. l.c. 741, 68 S.Ct. 1255, namely, that Judge Tillman was confronting a defendant whom he considered and believed to have been legally convicted of five previous felonies, including two convictions for first degree robbery on each of which defendant had been legally sentenced to 10 years’ imprisonment, whereas in truth defendant had been legally convicted of three previous felonies; and had not been legally convicted of the two robbery convictions (which entered into the determination) because the robbery convictions were invalid. The rationale is that the sentence of March 23, 1972, “might have been different if the sentencing judge had known that at least two of [appellant’s] previous convictions had been [illegally] obtained.” United States v. Tucker, 404 U.S. l.c. 448, 92 S.Ct. 592.

The State contends that the 13-year sentence was not “based on the two robbery convictions” but on the burglary conviction, but on this record the conclusion is inescapable that the sentencing judge on March 23, 1972, took into consideration “the totality” of appellant’s prior convictions, including the two 10-year robbery sentences later invalidated; that in referring to the 1964 burglary in his remarks at the conclusion of the evidence at the 27.26 hearing the judge was referring to the basis upon which the information under the Habitual Criminal Act was filed and not to the basis for the sentence, and that the reference to the burglary in the findings of fact was intended to convey the idea that the previous burglary conviction in and of itself would have been a sufficient “prior conviction” to justify the 13-year sentence, without regard to the two robbery convictions. The latter, of course, is not the question. The pertinent question is whether the sentence was predicated on misinformation; whether the sentence might have been different if the sentencing judge had known that at least two of appellant’s previous convictions had been illegally obtained.

We cannot on this appeal entertain the State’s contention that under Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), Judge Nangle erred in his ruling of November 21, 1973, setting aside the 10-year sentences, for we cannot here try that collateral matter and we must presume right action in that case.

Nor can we credit the State’s argument that it would be futile to remand the case for resentencing because the trial judge will pronounce the same sentence on remand. A sentence passed on the basis of a materially false foundation lacks due process of law and entitles the defendant to a reconsideration of the question of punishment in the light of the true facts, regardless of the eventual outcome.

The court of appeals then vacated the 13-year sentence and remanded for resen-tencing.

Respondent contends in this court that the foregoing opinion is contrary to the interpretation placed upon Tucker by the United States court of appeals, eighth circuit, in Peterson v. United States, Ryan v. United States, and United States v. Belle, supra.

In Ryan the prior convictions which Ryan asserted to be invalid had not been held invalid. In Peterson the allegedly invalid prior state convictions had previously been upheld as constitutionally valid. In Belle one of the five previous convictions had been reversed prior to the sentencing about which Belle was complaining. During the sentencing proceedings the judge asked Belle if it wasn’t correct that he had at least four adult convictions and Belle responded affirmatively and did not mention that a fifth conviction, a Dyer Act violation, had been reversed.

In each of these three cases the sentencing judge heard the postconviction motions and in overruling the motions stated unequivocally that the sentence he imposed was without regard to the prior convictions and that he would have imposed the same sentence regardless of the allegedly invalid convictions. The United States court of appeals concluded that the prior convictions did not enhance the sentences and therefore affirmed the trial court’s denial of the post-conviction motions.

In Taylor v. United States, 472 F.2d 1178 (8th Cir. 1973), the petitioner had been sentenced to three concurrent 20-year terms in 1967 as a subsequent narcotics offender. At the time the court imposed those sentences, the court was aware of the fact that in 1948 Taylor had been convicted and sentenced to a two-year term for acquiring and possessing marihuana cigarettes without paying the transfer tax. In 1949 Taylor was convicted of unlawful possession of heroin. Sentence was deferred from time to time and eventually Taylor was discharged without imposition of sentence. The eighth circuit held the 1949 conviction valid but held the 1948 conviction invalid for the reasons stated in its opinion at 1179[2]. In speaking about the three 20-year sentences, which were the subject of the Taylor case, the court stated at 1180:

“Notwithstanding that the district court has reasoned that the sentence here is within the permissible range of sentences for first and second offenders, we think compliance with the true intent and meaning of Tucker, as well as Leary [Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969) and Covington [United States v. Covington, 395 U.S. 57, 89 S.Ct. 1559, 23 L.Ed.2d 94 (1969)], requires that petitioner be resentenced. Although two of the three counts under Section 4705(a) were well within the statutory limits for second or subsequent offenses (ten to forty years), we deem it significant with respect to the third count that a second offender may receive five to twenty years while a third offender receives ten to forty years. Thus, even though appellant received a moderate sentence for a third offender, he received the maximum for a second offender on that count. See 26 U.S.C. sec. 7237(a).

“Although the district court has stated that it would be of no consequence, we nevertheless feel the court should resen-tence petitioner, keeping in mind that the 1948 conviction was constitutionally infirm and that the petitioner is not a third offender. This court is aware of our decision in McAnulty v. United States, 469 F.2d 254 (8 Cir. 1972), where we refused to remand to the district court since the district court reviewing petitioner’s motion to vacate the sentence under Section 2255 was the same court which had earlier sentenced the defendant. There the district judge had earlier refused to vacate the sentence since in his judgment ‘the sentence would be the same.’ We find this statement clearly distinguishable from the court’s reasoning here that resentencing would be of ‘no consequence’ since the original sentence was still within the permissible limits. A sentencing judge might still render a lesser sentence where the petitioner’s record appears in a ‘dramatically different light’ notwithstanding that the original sentence was within permissible limits of the lesser category of recidivists. Judgment reversed and remanded for resentencing of the 1967 conviction.”

On March 23, 1972, the appellant Wraggs was granted allocution and was sentenced to 13 years’ imprisonment on his conviction of assault with intent to maim with malice. This is the sentence he presently seeks to set aside and to receive a new sentence. On June 29, 1970, Wraggs received four sentences as follows: possession of heroin — 2 years; attempt to obtain money by means of a bogus check — 2 years; two convictions of robbery in the first degree with a dangerous and deadly weapon — 10 years each conviction. This was the situation at the time Wraggs was sentenced on March 23, 1972, and such was known to the sentencing court.

During the sentencing of March 23, 1972, the court stated to appellant that the court had considered all facets of the case and said, “I am going to give you time in addition to what you have.” (Emphasis supplied.) The judge said he had spoken with defense counsel with reference to whether the sentence should be concurrent to the earlier sentences or consecutive and concluded that a concurrent sentence would be in appellant’s best interest because, the judge said, the appellant would stand a better chance for parole if it were concurrent rather than consecutive.

The 13-year sentence was to be some time in addition to the concurrent 10-year sentences. We cannot determine just how much additional time it would have been because we do not know whether appellant had begun to serve the 10-year sentences or not. Suffice it to say that the circuit judge who imposed the 13-year sentence declared that he was doing so in order that appellant would have time in prison in addition to the 10-year sentences.

On November 21, 1973, Judge Nangle vacated the two 10-year robbery sentences; the appellant then repled guilty to one of the robbery charges and received a 6-year sentence to run concurrently with the 13-year sentence imposed March 23,1972. The other robbery charge was dismissed.

It seems obvious from Judge Tillman’s remarks at the time of sentencing that the pair of 10-year sentences which the appellant was then serving played a part in the judge’s decision to sentence appellant to a 13-year-concurrent term. It does not appear from the record that the fact of the prior convictions for robbery influenced the sentencing on the assault conviction nearly as much as the length of the sentences therefor which appellant was then serving. We have reached that conclusion because the sentencing judge, in effect, said so at the time he imposed the 13-year sentence.

This case is more in the vein of Taylor, supra than the other cases cited by respondent. The change from two robbery convictions with two concurrent 10-year terms to one robbery conviction with a single 6-year term places appellant in a significantly different position than what he was at the time Judge Tillman sentenced him. It is not for us to say that this change would not influence, although not compel, a sentencing judge to render a lesser sentence. This is true even though, as Judge Tillman has stated, the 13-year sentence was within legal limits and his discretion; it was not based upon prior convictions which were unconstitutional and was justified and supported by the severity of the crime of assault with intent to maim with malice. The fact remains that it was the sentencing judge who declared at the sentencing that the 10-year sentences appellant was then serving played a significant part in his decision to impose the 13-year sentence.

The judgment is reversed; the 13-year sentence is vacated and set aside; and the cause is remanded to the circuit court for resentencing.

SEILER, C. J., and HENLEY, FINCH and DONNELLY, JJ., DIXON and TUR-NAGE, Special Judges, concur.

MORGAN and RENDLEN, JJ., not sitting.

      . Cause No. 1778-R, possession of heroin (2 years); Cause No. 2851-R, attempt to obtain money by means of a bogus check (2 years); Causes Nos. 588-S and 589-S, robbery in the first degree with a dangerous and deadly weapon (10 years in each case), all four sentences imposed by Honorable James F. Nangle, presiding in division 10 of the circuit court of the city of St. Louis, on June 29, 1970, on pleas of guilty entered before him on May 12, 1970.


author: FINCH, Judge.

text:
    Albert J. BOLIN et al., Appellants, v. FARMERS ALLIANCE MUTUAL INSURANCE CO., a corporation, Respondent.
    No. 59647.
    Supreme Court of Missouri, En Banc.
    May 10, 1977.

      Paul McGhee, McGhee & McGhee, Dexter, for appellants.
    Robert A. Wulff, St. Louis, for respondent.
   FINCH, Judge.

This is a suit on a trip accidental death insurance policy issued on the life of Alma Mae Bolin on May 31, 1974. Following the accidental death of the insured on June 1, 1974, suit was brought by the heirs at law and the personal representative of Alma Mae Bolin (hereinafter plaintiffs) against Farmers Alliance Mutual Insurance Co., the company which issued the policy, and Marilyn Abernathy, a friend of the insured who is designated in the policy as beneficiary.

The trial court rendered summary judgment in favor of Farmers on March 21, 1975. On March 25, 1975, the court sustained without prejudice Marilyn Abernathy’s motion to dismiss as to her. Subsequently, on April 21, 1975, plaintiffs filed their notice of appeal from the summary judgment entered on March 21, 1975. The court of appeals, Springfield district, dismissed that appeal on the basis that said judgment, not having made any finding or disposition of the case against defendant Abernathy, did not finally dispose of all the parties and issues and was not a final judgment from which an appeal would lie. On application, we ordered the case transferred and we now decide it as though here on direct appeal. Mo.Const. art. V, § 10.

Plaintiffs first sought suit against only Farmers. It alleged (1) issuance by Farmers of a policy of insurance whereby it insured the life of Alma Mae Bolin for $50,000 if through accidental means she received injuries which resulted in her death, (2) the death of Alma Mae Bolin from such causes during the term of the policy, (3) that plaintiffs were entitled as next of kin and personal representative to the proceeds of the policy and (4) that payment had not been made although proof of loss had been furnished.

In answers to requests for admissions, plaintiffs admitted that the policy sued upon listed Marilyn Abernathy as beneficiary. Farmers then filed a motion for summary judgment, alleging that the beneficiary listed in the policy was Marilyn Abernathy, the effect of whieh is that under the policy provision relating to the payment of claims, plaintiffs are not entitled to the proceeds of the policy and are precluded from maintaining this cause of action.

Before the motion for summary judgment was acted upon, plaintiffs obtained leave to and actually filed an amended petition wherein Marilyn Abernathy was added as an additional defendant. The amended petition, in addition to allegations substantially the same as those in the original petition, alleged that Marilyn Abernathy had no insurable interest in the life of Alma Mae Bolin, that her designation as beneficiary was not effective and that she was not entitled to the proceeds of the policy. It stated further that Farmers knew when it issued the policy that Marilyn Abernathy had no insurable interest, that it negligently issued the policy, and that it was es-topped from refusing to pay the benefits provided by the policy. Finally, the amended petition alleged that Marilyn Abernathy obtained the policy at the instance and request of Alma Mae Bolin and that she had directions from Alma Mae Bolin to name plaintiffs as beneficiaries in said policy. It asked for judgment against Farmers for the amount of the policy, plus interest, and sought a declaration that Marilyn Abernathy had no interest in the proceeds of the policy.

After the amended petition was filed, defendant Abernathy, on December 17, 1974, filed a special entry of appearance and moved to dismiss plaintiffs’ petition as to her for failure to state a claim against her on which relief could be granted and also for the reason that the petition improperly united several claims.

Meanwhile, Farmers refiled its motion for summary judgment and on March 21, 1975, the court sustained that motion and entered judgment against plaintiffs and in favor of defendant Farmers. The judgment stated that “This judgment shall not affect the rights, if any, of defendant Marilyn Abernathy”.

Four days later, on March 25, 1975, the court entered this order:

“Motion of Defendant Marilyn Abernathy to dismiss is hereby sustained and said cause is hereby dismissed as to Defendant Abernathy and said dismissal is without prejudice as to any rights between plaintiffs and Defendant Abernathy.”

In deciding sua sponte to dismiss the appeal herein as premature, the court of appeals relied primarily on its decisions in Wile v. Donovan, 514 S.W.2d 177 (Mo.App.1974) and Wile v. Donovan, 532 S.W.2d 891 (Mo.App.1976). In Wile I plaintiffs sued Marie Donovan and Jack Donovan in an action wherein they sought to have a warranty deed declared to be a mortgage and then to have the property reconveyed to them upon tender of the amount due. The trial court entered a decree which resolved the issues in favor of plaintiffs and against Marie Donovan but did not grant plaintiffs any relief as against Jack Donovan nor did it discharge him from liability to plaintiffs. On appeal the court of appeals held that the judgment did not dispose of all parties and all issues and was not a final judgment in the case. The appeal was dismissed as premature.

On remand to the circuit court, the plaintiffs filed a motion to dismiss their cause of action against Jack Donovan. The motion was sustained and the case against Jack Donovan was dismissed without prejudice. No new judgment was entered and there was no order or judgment which made reference to the prior judgment entered against Marie Donovan. A new notice of appeal was filed which recited that it was from the findings and judgment entered September 24, 1973, (the judgment against Marie Donovan) and January 30, 1975, (the date of the order of dismissal as to Jack Donovan). The court in Wile II again dismissed the appeal as premature. It held that the dismissal order was not a final judgment and that the judgment of September 23, 1973, still did not constitute a final appealable order. It is obvious that the court of appeals concluded that a judgment or order fully disposing of issues in the case as to only one of the two defendants in a case, followed subsequently by an order of dismissal without prejudice as to the other defendant, did not result in a final judgment in the case. The opinion did not indicate what else would have been necessary for there to have been a final judgment.

After the court of appeals rendered its opinion herein, both plaintiffs and Farmers sought a rehearing in which they would have an opportunity to brief the question of whether there was a final appealable judgment. Both requests were denied. Plaintiffs then sought a transfer and we concluded that the question merited further consideration.

In this court supplemental briefs have been filed. Both sides argue strenuously that the circuit court disposed of this case as to all parties and issues and that there was a final judgment. However, after considering the briefs filed and the eases therein cited, we have concluded, for reasons which follow, that there was not a final judgment and that the case must be dismissed as premature.

The right of appeal is purely statutory. Dudeck v. Ellis, 376 S.W.2d 197, 204 (Mo.1964). Sec. 512.020 RSMo 1969 governs who may appeal a case from the trial court and when. Insofar as pertinent here, it provides that any aggrieved party may appeal “from any final judgment in the case”. In deciding what constitutes a final judgment, our courts have stated repeatedly “that, since an appeal must be from a final judgment (with specified exceptions), the trial court must have disposed of all issues and all parties”. Spires v. Edgar, 513 S.W.2d 372, 373 (Mo. banc 1974). This requirement that all issues and all parties have been disposed of is for the purpose of avoiding piecemeal presentation of cases on appeal, except where specifically so authorized. Weir v. Brune, 364 Mo. 415, 262 S.W.2d 597, 599 (1953).

The amended petition in this case listed as plaintiffs the personal representative and the heirs at law of Alma Mae Bolin. Defendants were Farmers and Marilyn Abernathy. The issue as between plaintiffs and Farmers was whether plaintiffs should recover $50,000, the policy amount, plus interest. As to Marilyn Abernathy, the suit sought a declaration that, although named in the policy as beneficiary, Abernathy had no right, title or interest in the proceeds of the policy sued upon. Various grounds for such a result, such as a lack of an insurable interest and a violation by Abernathy of instructions from the insured to have plaintiffs named as beneficiaries, were alleged.

The trial court made two entries of record whereby these issues and these parties were disposed of in this case. The first was the order of March 21,1975, which provided as follows:

“Motion for summary judgment filed on behalf of defendant Farmers Alliance Mutual Insurance Company as against plaintiffs is hereby sustained and judgment in favor of defendant Farmers Alliance Mutual Insurance Company is entered as against said plaintiffs and the cost of this action is taxed against plaintiffs. This judgment shall not affect the rights, if any, of defendant Marilyn Abernathy.”

Whether denominated an order or a judgment, this action by the trial court undertook to resolve the issue between plaintiffs and Farmers as to whether plaintiffs were entitled to judgment against Farmers on the policy. It settled that issue by sustaining Farmers’ motion for summary judgment on plaintiffs’ petition and by taxing costs of the action against plaintiffs. It did not undertake to resolve issues as between plaintiffs and Abernathy and specifically recited that it was not to affect the rights, if any, of Marilyn Abernathy. Hence, this entry did not dispose of all issues and all parties in the case and was not a final judgment. The fact that it was not treated as a final judgment at the time is shown by the fact that the court on March 25, 1975, acted to dispose of the case as against Marilyn Abernathy. Hence, the summary judgment directed by the court necessarily was an interlocutory judgment or order. Barlow v. Scott, 85 S.W.2d 504, 519 (Mo.1935). This meant that the court continued to have the right at any time, so long as the order remained interlocutory, to add to, amend or set aside that order. State ex rel. Schweitzer v. Greene, 438 S.W.2d 229, 232 (Mo. banc 1969).

The second entry made by the court with reference to disposing of issues or parties in the case was the order of dismissal dated March 25, 1975, whereby the case was dismissed without prejudice as to Marilyn Abernathy. That order did not undertake to adjudicate the rights as between plaintiffs and Abernathy as to the accidental death policy or the proceeds thereof. (It recited that it was “without prejudice as to any rights between plaintiffs and defendant Abernathy”.) However, it did eliminate from that suit the controversy between plaintiffs and Abernathy and dismissed her as a party in the case. It did not purport to do anything else.

After the order of dismissal as to Abernathy was made on March 25, 1975, the court had made disposition of all issues and all parties in the case. Both plaintiffs and Farmers would have us hold that this meant there was a final judgment and that we should go on to resolve the case on the merits. The problem we face is that the trial court, in resolving the issues between plaintiffs and Farmers, did so by an order which, as we have noted, was interlocutory at the time it was entered. Thereafter, the court made no order and entered no judgment which indicated an intention to or which had the effect of converting what had been an interlocutory judgment or order into a final judgment in the case. Until that was done, the March 21, 1975, order remained subject to change by the trial court at any time.

It is arguable, as plaintiffs contend, that when the trial court entered summary judgment for Farmers in plaintiffs’ suit to recover on the policy, thereby determining that plaintiffs could not recover on the policy at all, the issues as between plaintiffs and Abernathy became moot and plaintiffs’ cause of action against Abernathy was moot. If that argument is accepted, the summary judgment could be said to be a final appealable judgment. Likewise, it is arguable, as all parties to this appeal contend, that when the trial court, after entering the interlocutory order covering issues between plaintiffs and Farmers, then disposed of the remaining issues and parties by dismissing the case without prejudice as to Marilyn Abernathy, the interlocutory order or judgment was transformed as a matter of law into a final appealable judgment. There are cases which seem to support such a result. We perhaps could adopt one of these positions but to do that means that when an appellate court gets a transcript which contains nothing which purports to be a final judgment it must then search the record to determine, if possible, whether what the court did on various occasions amounts collectively to a final judgment. Such approach presents, for the appellate court, the kinds of problems and difficulties which have been encountered in those cases wherein the court, in order to establish jurisdiction, has had to search the record and then grapple with whether the case involved construction of constitutional provisions or mere application of established constitutional principles. That, we conclude, is not desirable. The transcript on appeal should contain a final judgment, plainly constituting such. We should not approve an approach which makes it necessary for the appellate court to decide whether a resolution of the case as to one defendant makes the case moot as to the other, or which makes it necessary for the appellate court to piece and tack together various parts of the record, none of which purport to be a final judgment, and conclude therefrom that collectively they amount to a final judgment. This is not to say that a final judgment must have physically incorporated therein everything necessary to a conclusion that the court by this judgment has disposed of all issues and all parties. For example, if, in the order made March 25, 1975, whereby the case was dismissed without prejudice as to Marilyn Abernathy, the entry had gone on to recite that with this dismissal as to Abernathy, the court had now by its orders disposed of all issues and all parties and the interlocutory order granting summary judgment in favor of Farmers, entered March 21, 1975, was now made final and incorporated by reference, there clearly would have been a final ap-pealable judgment. See 49 C.J.S. Judgments § 65 (1947), wherein it is stated: “The entry of an interlocutory decree followed by the entry of a decree rendering the former final does not violate the rule [that requires a single final judgment].”

In oral argument of this case, counsel stated that there are two other cases pending involving this same policy of insurance. One was described as a suit by Abernathy against Farmers in which plaintiffs have intervened. The nature of the other suit was not disclosed. We do not know the status of those cases but perhaps on remand of this ease, the parties can avoid multiple suits by choosing one vehicle in which this entire three-sided controversy can be resolved in one case.

Appeal dismissed.

SEILER, C. J., and MORGAN, BARD-GETT, HENLEY, and DONNELLY, JJ., concur.

RENDLEN, J., not participating because not a member of Court when cause submitted.

      . Plaintiffs’ answers also recited that Marilyn Abernathy, the beneficiary named in the policy, did not have an insurable interest in the life of Alma Mae Bolin and that said policy erroneous; ly named Marilyn Abernathy as beneficiary instead of naming plaintiffs as beneficiaries.

      . The policy provision referred to is captioned “Payment of Claims” and provides as follows:
      “Indemnity for loss of life will be payable in accordance with the beneficiary designation and the provisions respecting such payment which may be prescribed herein and effective at the time of payment. If no such designation or provision is then effective, such indemnity shall be payable to the estate of the Insured. * * * ”

      . It is of interest to note that on a third appeal in that case from a judgment which the court considered to be a final appealable judgment, the court disposed* of the case on the merits. The opinion does not set out what form that judgment took. Wile v. Donovan, 538 S.W.2d 906 (Mo.App.1976).

      . Of course, there would have been no problem if the court on the same day had entered in a single judgment the summary judgment as entered March 21, 1975, and the order of dismissal as entered on March 25, 1975. Newdiger v. Kansas City, 342 Mo. 252, 114 S.W.2d 1047, 1048, 1054 (1937).