author: JONES, Justice.

text:
    Rebecca Ann MILAM, an infant, by her next friend, Leslie D. Aberson, Appellant, v. SEARS, ROEBUCK & COMPANY, Appellee.
    Supreme Court of Kentucky.
    Feb. 21, 1978.
    William A. Miller, Louisville, for appellant.
    John P. Sandidge, Woodward, Hobson & Fulton, Louisville, for appellee.
   JONES, Justice.

These proceedings are before this court on an order granting discretionary review of an opinion of the Court of Appeals of Kentucky, 554 S.W.2d 877 dated May 20, 1977. The Court of Appeals held that under the provisions of KRS 21.130, Milam is entitled to 10% damages in the entirety on the judgment. The Court of Appeals held also that since Milam had received that sum from Otis Elevator Co. in satisfaction of the judgment she was not entitled to recover an additional 10% against Otis.

This court has reviewed the entire record, heard oral arguments and is of the view that the well-reasoned opinion of the Court of Appeals is correct, and the same is approved and adopted by this court in its entirety. For the reason that the opinion of the Court of Appeals rendered May 20, 1977, now published at 544 S.W.2d 877, it is unnecessary to detail the facts.

The judgment of the Court of Appeals is affirmed.

All concur.


source: Caselaw Access Project

author: STERNBERG, Justice.

license: Public Domain

text:
    Harold E. KELLEY et al., Appellants, v. CITY OF ASHLAND, Kentucky, etc., et al., Appellees.
    Supreme Court of Kentucky.
    Feb. 21, 1978.
    Michael R. Dowling, Ashland, Joseph J. Leary, Frankfort, for appellants.
    Michael D. Johnson, Alan E. Sears, Ash-land, for appellees.
   STERNBERG, Justice.

This injunction action was filed in the Boyd Circuit Court by Harold E. Kelley, Ruie Kelley and The Galloway Realty Company against the City of Ashland, Kentucky, David 0. Welch, Mayor; John Oli-verio, Burley Stevens, Jack Thompson and Norman Dutch Berry, City Commissioners; and Marcia Mabley, City Assessor. The appellants sought to have the court order the appellees to take such measures as are necessary to bring about a uniform ad valo-rem tax assessment throughout the city. Issues are joined by the parties. By reason of the disposition that we make of the ease, it is not necessary that we reach any of the issues made by the pleadings.

A one-day trial was held in the Boyd Circuit Court and the trial judge filed findings of fact, conclusions of law and judgment on October 4, 1976. This judgment ordered, among other things, that the city tax assessor take all steps within the capacity of his office to equalize assessments. From this judgment the appellees appealed to the Court of Appeals of Kentucky. That court disposed of the case by reversing and remanding the action to the Boyd Circuit Court. The bases on which the Court of Appeals disposed of the case are clearly set forth in its opinion. City of Ashland v. Kelley, Ky.App., 555 S.W.2d 821 (1977). So that the action of the Court of Appeals is clearly delineated, we quote liberally from it, as follows:

“In the complaint, the appellees assert that approximately eighty percent of the real estate within the city is undervalued and that only twenty percent of the real estate was valued at fair market value. If the judgment of the trial court is correct, those owners whose property is currently assessed at fair market value would not be required to pay any additional tax as a result of the reassessment. On the other hand, those owners whose property is presently valued at less than fair market value would be required to pay a greater tax if the current legal tax rate is to be applied to the higher value determined upon reassessment. This group of owners is not represented in this proceeding. The appellants and the ap-pellees would have this court decide the issue raised without affording the property owners most directly affected an opportunity to be heard.
Neither the appellants nor the appel-lees have at any time raised the question of joining all necessary parties to this proceeding. Nevertheless, in declaratory judgment proceedings the appellate court should consider a defect of parties although the question was not otherwise raised. * * * Since no owners of un-derassessed property had been made parties to the action, the circuit court should have declined to rule on the issue presented. The circuit court’s judgment could not be binding upon persons who were not parties to the action or who were not represented in the action. * * * ”

On October 4, 1977, this court granted discretionary review.

The issue presented is the extent of the tax rate that can be levied by Ashland, a city of the second class. Counsel differ as to the applicability of KRS 132.027, 132.-010(6), 132.425 and 92.280, Section 181 of the Kentucky Constitution, and the propriety of making a city-wide reassessment of all of the property within the city limits. Since the Court of Appeals refused to decide the issue, holding as it did that this is a class action and all classes are not represented, we have before us only the propriety of the action of the Court of Appeals. It said, “A representative of underassessed property owners should have been joined so that the case could have proceeded to judgment as a class action.”

Appellants seek to require the ap-pellees to assess all property in the City of Ashland, Kentucky, at its fair cash value which by law they are required to do. (Ky. Const. Sec. 172.) It is not one where one class seeks to benefit at the expense of another. As a matter of fact, where would a person be found who would admit that his property is underassessed, and who is to say that any property is either underassessed or overassessed until the assessment has been made? It is like standing among a crowd of preachers and inquiring for a sinner. There undoubtedly would be one among so goodly a crowd, but it is seriously doubted that it would be admitted.

In Russman v. Luckett, Ky., 391 S.W.2d 694 (1965), this court was confronted with a most serious and heatedly contested issue involving the tax assessing condition that existed in Kentucky for many years. Three separate actions involving the same issue were heard together and decided by one opinion. The persons in the three cases challenging the method of taxation were identified as resident property owners, taxpayers, parents of school children, and students who attend school. We said, “We conclude the plaintiffs not only have a right to prosecute this action but they, and those they represent, and the public, are entitled to relief.”

CR 23.01 sets forth the prerequisites to class actions. CR 23.02 provides the authority for bringing class actions. We find nothing in either of these rules which requires a proceeding such as that which we have before us to proceed as a class action. CR 17.01 provides that, “Every action shall be prosecuted in the name of the real party in interest, * * We find nothing in this rule to require any person other than the appellants to be parties to this action, which has for its purpose the requiring of a public officer to do his duty.

The judgment of the Court of Appeals is reversed for proceedings in keeping with this opinion.

PALMORE, C. J., and REED, STEPHENSON, JONES, CLAYTON and STERNBERG, JJ., sitting.

All concur.


text:
    Iva Mildred Thomas PING, Appellant, v. Ann P. DENTON, Administratrix of Estate of James F. Ping, Deceased, et al., Appellees.
    Supreme Court of Kentucky.
    Feb. 21, 1978.

      James A. Dressman, Jr., Covington, for appellant.
    W. David Denton, Paducah, Gary L. Her-fel, William B. O’Neal, Cincinnati, Ohio, for appellees.
   STERNBERG, Justice.

This court is again called upon to determine whether a dissolution of marriage terminates the right of a divorcee to recover on a policy of insurance on the life of her former husband. This court has consistently held in the affirmative, beginning with Sea v. Conrad, 155 Ky. 51, 159 S.W. 622 (1913). We are asked to review the soundness of our position in light of certain fairly recent statutory changes. We find merit in appellant’s argument.

On May 22, 1971, James Ping, then an employee of the Southern Railway System and while unmarried, designated the appellant as the beneficiary of a group insurance policy written on his life in The Travelers Insurance Company. On January 1, 1972, James and Iva were married, and on April 9, 1973, their marriage was dissolved. On August 16, 1973, James died intestate and his sister, the appellee Ann P. Denton, qualified as administratrix of his estate. Although James had the right to do so, the name of the beneficiary had not been changed. On October 16,1973, pursuant to the demand of the designated beneficiary and without knowledge that anyone other than the appellant was making any demand or claim, the insurance carrier paid the proceeds of the insurance policy to Iva. On October 24, 1973, the estate of James made demand on The Travelers Insurance Company for payment of the proceeds of the policy. This payment was refused since it had already been paid to Iva, the named beneficiary in the policy.

The policy of insurance is what is known as a straight-life policy. The premiums on the policy were paid by James’ employer as a fringe benefit. It accumulates no cash surrender value. In other words, its monetary value was at the time of the death of the insured, not at the time of the dissolution of the marriage.

The Kenton Circuit Court determined, among other things, which at this time are not necessary to be presented or decided, that,

“The interest of the wife as beneficiary is not necessarily terminated by divorce. The previous Kentucky cases held otherwise due to the restoration provisions of KRS 403.060 and 403.065, repealed June 16, 1972, and thus not applicable to this case.
KRS 403.190, which replaced KRS 403.-060 and 403.065, requires each spouse’s property be assigned to him. It contains no mandate of restoration of property obtained from the other in consideration of the marriage. The group insurance policy was the property of the deceased at all times, before and after the divorce. The beneficiary did not acquire any property in the policy during the marriage or in consideration of marriage. The decedent had the right to change the policy beneficiary at any time, which he did not do after the divorce. * * *”

On appeal to the Court of Appeals of Kentucky, it reversed the holding of the trial judge. In doing so, it said that the dissolution of marriage divested Iva of any interest she enjoyed as beneficiary of the life insurance policy of her former husband James. In arriving at this conclusion, it reasoned that KRS 403.190 and 392.090 together dictate such action.

A policy of insurance is nothing more nor less than a contract wherein an insurance company, for valuable consideration, agrees to pay a sum of money on a specified contingency to a designated person called a beneficiary.

In Sea v. Conrad, supra, this court held that an absolute divorce extinguished the right of a divorcee to take as a beneficiary under an insurance policy on the life of her deceased former husband. In so holding, we reasoned that the restoration statutes KRS 403.060 and 403.065, formerly known as Section 425 of Carroll’s Civil Code and Section 2121 of Carroll’s Kentucky Statutes, mandated the restoration.

In Bissell v. Gentry, Ky., 403 S.W.2d 15 (1966), George and Gladys Bissell were granted an absolute divorce from the bonds of matrimony. Prior to their divorce George received from his employer a policy of life insurance on his life, in which Gladys was named the beneficiary. All of the premiums were paid by George’s employer. George and Gladys were divorced and several years later George died without changing the name of the beneficiary of the policy. Both Gladys and the administrator of George’s estate made demand for payment of the benefits due under the policy. The insurance company paid into court the amount due under the policy. The trial judge held, and we affirmed, that the restoration statute KRS 403.060, upon divorce of the parties, abrogated every right Gladys had in the policy even though she was the named beneficiary and there had been no change in the name of the beneficiary. We said:

“The employment of Bissell was the only consideration for issuing this policy and paying the premiums necessary to keep it in force. The result is that it is as though Bissell individually procured and paid for the policy.”

In the case at bar the parties occupied the same position to each other as in the Bissell case. To paraphrase Bissell is to say:

“There is a statement that neither Ping nor his ex-wife paid any of the premiums on the policy in issue. It was a group policy furnished by Ping’s employer as part of the terms of his employment. The employment of Ping was the only consideration for issuing this policy and paying the premiums necessary to keep it in force. The result is that it is as though Ping individually procured and paid for the policy.”

The distinguishing factor between the two cases is that Bissell died in 1966 prior to the repeal of KRS 403.060 and 403.065, while Ping’s death occurred subsequent to their repeal and to the enactment of KRS 403.-190. In view of the fact that this court followed a long established principle of law, we find no fault with the result reached in Bissell. As a matter of fact, this court, as late as 1975 in Shellman v. Independence Life and Accident Insurance Company, Ky., 523 S.W.2d 221, reasoned that KRS 403.060 required such disposition. In Shellman we were presented with the question of whether the rights as a beneficiary of a life insurance policy of his divorced spouse terminated upon their divorce. This is an over simplification of the facts, but is sufficient to demonstrate that we recognized that the restoration statutes KRS 403.060 and 403.-065 had been repealed and replaced by KRS 403.190.

KRS 403.060 and 403.065 were repealed and KRS 403.190 was enacted in the same bill at the regular 1972 session of the General Assembly. Although KRS 403.190 replaced KRS 403.060 and 403.065, it does not necessarily follow that it was intended to, nor does it have the same effect on the respective rights of the parties as did KRS 403.060 and 403.065.

The regular 1972 session of the General Assembly made major changes in our statutes dealing with family law. (Acts 1972, eh. 182.) These changes followed generally the pattern of the Uniform Marriage and Divorce Act and were generally referred to as the Kentucky no-fault divorce law. KRS 403.190 was taken from section 307 of the Uniform Act. As a matter of fact, it is identical to and almost word for word with section 307 of the Uniform Act. The Kentucky no-fault divorce law caused much confusion in its application by reason of the many vital changes in the whole gamut of Kentucky family law. Many of these changes made by no-fault are yet being misunderstood and their propriety is being challenged. To illustrate, we need only refer to the 1977 Supplement by Professor Ralph S. Petrilli to his treatise of “Kentucky Family Law”, which was originally published in 1969. In the 1977 Supplement Professor Petrilli says:

“24.7 - Restoration of property -Life insurance.
Under the now repealed restoration statute a wife’s interest in a life insurance policy was held to be restorable to the husband. Under KRS 403.190(2) this interest would seem to be presumptively marital property, to be divided upon divorce. However, see Section 24.6 herein, that a wife’s interest could be considered a gift and thus assignable to her.”

KRS 403.190 provides as follows:

“Disposition of property — (1) In a proceeding for dissolution of the marriage or for legal separation, or in a proceeding for disposition of property following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, the court shall assign each spouse’s property to him. * *”

This statute mandates the trial judge to assign each spouse’s property to him. Like other issues of fact, the interests of James and Iva were proper for inquiry and adjudication. The decree of dissolution of marriage, including the assignment of property, like other civil judgments became final ten days after its decree. CR 59.02 and 59.04. Thus, unlike KRS 403.060 and 403.065, it does not leave open for subsequent inquiry the rights of either or both that have not been adjudicated upon the final determination of the controversy. The insurance policy, with Iva as the named beneficiary, existed at the time their marriage was dissolved and the decree entered. It also was the proper subject of inquiry and adjudication. Any interest that either James or Iva may have had in or to any property, estate or interest of the other, which remained undisposed of by the trial judge, is in the posture as if the court had so adjudged their respective interests.

In the case at bar there is nothing in the record to indicate that the terms or provisions of the decree of dissolution of marriage of James and Iva made any provision for the disposition of the policy of insurance or of any interest of the named beneficiary. James alone determined to make Iva the beneficiary at a time when they were not married. This he had a right to do. Yett’s Adm’r v. Yett, 261 Ky. 737, 88 S.W.2d 962 (1935); 173 A.L.R. 716, note 4. James alone determined to retain Iva as the beneficiary during the period of their marriage. This he had a right to do. Yett’s Adm’r v. Yett, supra. James alone determined not to take from Iva the interest of a beneficiary. This he had a right to do. Yett’s Adm’r v. Yett, supra. James alone owned and controlled the policy and the right to change the beneficiary if he chose to do so. Not having changed the beneficiary at the time of his death, Iva was entitled to receive the proceeds from the policy of insurance.

The learned trial judge determined that Iva’s interest in the insurance policy was not property and was therefore not subject to the ramifications of KRS 403.190. In the disposition that has been made of the issue in this case, we find it unnecessary to reach that question.

It is suggested that KRS 392.090(1), when considered with KRS 403.190, mandates divesting Iva of any interest she may have enjoyed as the named beneficiary. KRS 392.090 is not of recent origin, and our research fails to disclose where it has ever been applied to the subject issue. It had its taproot in what is referred to as the “Statute of Westminster, II,” 1285 A.D. It found its way into our statutes as part of our laws dealing with descent and distribution long before the turn of the Nineteenth Century. For a thorough treatise of the origin and progression of this statute, see Baldwin v. Cook, 232 Ky. 365, 23 S.W.2d 601 (1930), where this court refused to apply it to a gift made by will. This statute is now found in the Kentucky Revised Statutes dealing with dower and curtesy. It has no application to the present issue.

So much of the opinion rendered June 24, 1977, by the Court of Appeals which affirms the judgment of the Kenton Circuit Court as to the liability of The Travelers Insurance Company is likewise affirmed by this court. So much of the said opinion as reverses the judgment of the Kenton Circuit Court and denies the appellant the right to recover the proceeds of the policy of life insurance on her former husband James Ping is vacated and set aside by this court and the judgment of the Kenton Circuit Court with respect thereto is affirmed.

All concur.


author: PER CURIAM.

text:
    KENTUCKY BAR ASSOCIATION, Complainant, v. D. Gene DILLMAN, Respondent.
    Supreme Court of Kentucky.
    Feb. 21, 1978.
    Leslie G. Whitmer, Director, Kentucky Bar Ass’n, Frankfort, for complainant.
    No attorney of record for respondent.
   PER CURIAM.

This is the third disciplinary proceeding against D. Gene Dillman since 1976. See Kentucky Bar Association v. Dillman, Ky., 539 S.W.2d 294 (1976) and Kentucky Bar Association v. Dillman, Ky., 554 S.W.2d 362 (1977). He has failed to answer or respond in either of the two previous proceedings. In the current proceedings he has again failed to answer, defend, or attempt to mitigate the charge against him.

The current charge is that in 1973 Dill-man was employed by Mae Carter of Mid-dlesboro, Kentucky, to obtain benefits under the Federal Coal Mine Health and Safety Act of 1969 based upon the illness of her now-deceased husband. An administrative law judge ruled adversely to the claim. This ruling was appealed to the Appeals Council. On November 13, 1973, the Appeals Council upheld the administrative law judge’s decision and informed Mrs. Carter and Dillman by mail that an appeal could be taken within 60 days in the United States District Court. Mrs. Carter paid Dillman $18.00 to file her appeal in District Court. He failed to file the appeal until February 12, 1974, which was beyond the statutory appeal period. The appeal was dismissed on June 27, 1974.

During this period, Mrs. Carter was extremely concerned about obtaining the benefits and spoke several times to Dillman and to his secretary about the litigation in the United States District Court. Dillman, on each occasion between July 1974 and the summer of 1976, deliberately misrepresented the true status of the litigation by stating that the action was still pending, that “it just takes time,” and that Mrs. Carter should be hearing something very soon.

Dillman was elusive to service of notice of the charges, but was not elusive enough. He was actually served by certified mail. He requested a thirty-day extension to file an answer. The time was granted but no answer was filed. The Board of Governors of the Kentucky Bar Association found Dill-man guilty of the charges by a unanimous vote. The board recommended disbarment.

Although the current conduct was within the time frame of the previous charges, this court concludes that Dillman has persistently demonstrated such dishonest conduct accompanied by a lack of legal competence that the punishment of disbarment recommended by the Bar Governors is amply warranted. Dillman has played fast and loose with this court on more than one occasion. He is plainly unfit to practice law.

It is therefore the judgment of this court that D. Gene Dillman be and he is hereby permanently disbarred from the practice of law in this Commonwealth. It is further adjudged that D. Gene Dillman pay the costs of this proceeding.

All concur.


author: HOWARD, Judge,

text:
    Luther HORN, Appellant, v. Jerry HORN, Appellee.
    Court of Appeals of Kentucky.
    Feb. 10, 1978.
    L. Owen Doyle, Paintsville, for appellant.
    John R. Triplett, Inez, J. K. Wells, Wells, Porter & Schmitt, Paintsville, for appellee.
    Before COOPER, HOWARD and PARK, JJ.
   HOWARD, Judge,

This is an appeal from the Martin Circuit Court wherein an oral trust agreement between plaintiff-appellee, Jerry Horn (hereinafter referred to as Jerry), and defendant-appellant, Luther Horn (hereinafter referred to as Luther) was found to be valid and enforceable. Luther was adjudged to be holding in trust for Jerry the entire tract of land previously owned by Burnam Cassi-dy (hereinafter referred to as the Burnam tract), and to be holding in trust for Jerry an undivided one-half interest in the two tracts of land previously owned by Samuel Cassidy (hereinafter referred to as the Samuel tracts).

Luther questions on this appeal whether a parol trust was established on the basis of the evidence presented.

The resulting trust abolished by KRS 381.170 is one arising from the naked fact that a person has furnished consideration to buy land while title to that land is taken by another, without any agreement as to use. Gibson v. Gibson, Ky., 249 S.W.2d 53 (1952). That statute has no application when there is an express parol agreement establishing a trust because the section of the Statute of Frauds, which provides that all trust of land should be manifested in writing, has never been adopted in the Commonwealth of Kentucky. KRS 371.010. Jenkins v. Jenkins, Ky., 300 S.W.2d 564 (1957).

The evidence to establish a parol agreement creating a trust in land must be greater than a preponderance of the evidence, and must be definite, clear, and convincing. The evidence is to be closely scrutinized and carefully weighed by the courts. Moore v. Terry, 293 Ky. 727, 170 S.W.2d 29 (1943).

Luther alleges that he purchased the Burnam tract and the Samuel tracts for himself, and that no agreement existed between he and Jerry that Luther was holding the properties in trust for Jerry. Jerry alleges that he paid all of the consideration for the Burnam tract and one-half the consideration for the Samuel tracts, and that it was understood that Luther would convey the properties to Jerry upon Jerry’s request.

Several years prior to the actual purchase of the Burnam tract, Jerry was going to purchase the property from a Mrs. Cassidy (Burnam’s mother). Before the deed was made, Mrs. Cassidy died and Burnam inherited that land. Burnam contacted Jerry about purchasing the property and the price of $2,000.00 was agreed upon. The facts concerning this tract thereafter are in dispute.

Luther alleges that, after these negotiations, Jerry changed his mind about purchasing the property. Jerry asked Luther if he was interested in buying the property and told him he could help him get it. Luther claims he paid the entire consideration for the property, part of the money coming out of his safe at home and $1,000.00 coming from a loan from Homer Horn. Luther gave the money to Jerry, Jerry closed the deal and handed the deed to Luther. Homer Horn supported Luther’s testimony. Luther’s name of course, appears on the deed.

Jerry claims that Luther advised him to put the deed in his name so that Jerry’s wife could not get part of it. Jerry and his wife were experiencing marital problems and were separated. Jerry testified that he woke Luther up and got $500.00 from him, which Luther was supposedly holding for Jerry. Jerry than went to the bank where he met Burnam Cassidy; told the secretary who was preparing the deed to put it in Luther’s name; cashed four payroll checks; and paid for the property.

Both Burnam Cassidy and his wife state they did not know that Luther’s name was on the deed. They thought that they were selling the property to Jerry. Burnam Cas-sidy testified that Jerry had to go to the bank window to get some checks cashed before he paid for the property.

Concerning the Samuel tracts, Luther claims that the purchase price was $3,000.00. He testified that he paid Samuel Cassidy $1,054.00 by check, paid a mortgage at the bank in the amount of $867.96 and gave him over $1,000.00 in cash. The can-celled check and the released mortgage were introduced into evidence. The deed recites that the consideration was $1,054.00 and, of course, the deed is in Luther’s name. Homer Horn again testified that he saw Luther give Samuel Cassidy the money and the check.

Jerry testified that he contacted Luther to go halves with him on this transaction. He further testified that the purchase price was $4,000.00 and that he paid $1,095.00 in cash to Samuel Cassidy. He testified that Luther was to pay off the mortgage and was to pay $1,054.00. The record does not explain the apparent discrepancy in the figures. Samuel Cassidy corroborated Jerry’s story that both Jerry and Luther paid him and they were partners in buying the property. Jerry testified that Luther told him (Jerry) that he had put his (Luther’s) name on the deed and asked if that was all right.

Jerry presented some six witnesses from the community who had talked to Luther at various times. They all testified that Luther had indicated to them that the Burnam tract was Jerry’s, and that the Samuel tracts were his and Jerry’s.

Jerry resides in Columbus, Ohio and Luther resides in the area. Luther paid the taxes on the properties. No rent passed between Luther and Jerry. Luther, at one time, moved a house onto one of the properties and also bought some fill dirt for one of the properties. A tenant who rented the house which had been moved, testified that he was aware he was renting from both Luther and Jerry, although Luther collected and pocketed the rent.

The evidence here is contradictory. The testimony of Jerry is corroborated, in part, by the testimony of the grantors of the properties. There is also the testimony of the residents of the community as to Luther’s statements about the ownership of the properties. The evidence here does not consist solely of the testimony of the person trying to establish the trust, as in Jenkins, supra.

We believe that the evidence is clear and convincing enough to establish the oral trusts for both the Burnam tract and the Samuel tracts.

The judgment of the trial court is affirmed.

ALL CONCUR.


author: HENLEY, Judge.

text:
    FOREST HILLS CONSTRUCTION COMPANY, Plaintiff-Appellant, v. CITY OF FLORISSANT et al., Defendants-Respondents, Northwestern Savings and Loan Association, Cross-Defendant-Appellant.
    No. 59682.
    Supreme Court of Missouri, En Banc.
    Jan. 9, 1978.
    Rehearings Denied March 13, 1978.
    Robert L. Inman, Joel F. Graziani, Clayton, for plaintiff-appellant.
    Shulamith Simon, Wm. Guerri, Edwin D. Akers, Jr., St. Louis, for defendants-respondents.
   HENLEY, Judge.

This is a declaratory judgment action involving the ownership of $43,200 held in an escrow account by defendant, Northwestern Savings and Loan Association (Northwestern). This amount represents the total of sewer connection fees paid into the escrow account by and in the name of plaintiff, Forest Hills Construction Company (Forest Hills) pursuant to written agreements with defendants, City of Florissant (City) and Metropolitan St. Louis Sewer District (MSD). Forest Hills sought a judgment declaring that it is entitled to the money deposited in escrow, contending that under the law it is the owner thereof. The City and MSD filed a joint answer and a cross-claim. In their answer to Forest Hills’ petition they sought a judgment that the City is entitled to the funds in escrow. They did not seek judgment against Forest Hills for dividends earned by the escrow account and paid to Forest Hills or for interest thereon. In their joint cross-claim they sought (1) an order adding Northwestern as a party defendant; and (2) a judgment against Northwestern that it pay the escrow fund to the City “plus accumulated dividends thereon and interest on each payment made to said fund from the date of each payment.” Northwestern made no claim to the money; it sought only an order directing that it be authorized to pay it to whomever the court determined was legally entitled thereto. Trial to the court resulted in a judgment (1) against Forest Hills on its petition; and (2) in favor of the City and against Northwestern on the cross-claim that it pay “the escrow fund to the City * * * and any accumulated dividends thereon and interest on each payment made to such fund from the date of each payment.” Upon appeal by Forest Hills and Northwestern to the Court of Appeals, St. Louis district, the judgment was modified to provide that the escrow account bear interest from December 18, 1958, the date of a judgment in another action involving the City and MSD. As modified, the judgment was affirmed. We sustained the separate applications of Forest Hills and Northwestern and ordered the ease transferred to this court, primarily to review the award of accumulated dividends and interest.

On January 12,1953, the City adopted its Ordinance No. 391, requiring, inter alia, the payment of a sanitary sewer connection fee of $200 for each home or building erected on any lands annexed by the City subsequent to that date. This fee, to be paid to the City Clerk as a condition precedent to the issuance of a building permit for each home, was required to be deposited in a special fund and used for the construction or repair of a sewage disposal plant. In the event of construction of a main trunkline sanitary sewer, the fund could be used to pay for such construction or to pay bonds issued for that purpose. The ordinance further required that no annexation request be considered until the owners of any lands to be annexed had executed an agreement with the City providing that they would comply.

On February 9, 1954, the people of the city of St. Louis and St. Louis county by their vote approved a plan for organization of MSD. After organization, MSD adopted a policy governing the procedure for applicants seeking approval of subdivision sanitary sewers where trunkline sewers were not available. It also provided for and required payment of $200 for each home or building erected within an area of MSD not then served by a trunkline sewer, this money to be used for the construction of such sewer.

In 1955, Forest Hills and the owner of certain land located outside the corporate limits of the City of Florissant entered into a contract in which Forest Hills agreed to buy the land for the purpose of developing it into a single-family residential subdivision to be known as “Florland.” A condition of the contract was that the land be annexed by the City. The annexation was accomplished and the purchase of the land completed. Forest Hills was aware of the sewer fee requirements of Ordinance 391 when it became involved in the purchase of this land.

Pursuant to an agreement dated February 10, 1956, Forest Hills and another land developer installed a temporary basin for sewage from areas they were developing.

By early 1956 a dispute had developed between the City and MSD concerning their respective rights to collect sewer connection fees from subdivision developers. As stated, the City and MSD were each authorized by action of their respective governing boards to collect a connection fee of $200 for trunkline sewer purposes. This dispute resulted in a declaratory judgment action filed in March, 1956, by the City against MSD to determine which one had a right to collect the connection charge.

Confronted with these circumstances, Forest Hills and the City entered into a written agreement on May 1,1956, concerning such fees for the first 52 lots in Flor-land subdivision. This agreement (1) recognized the legal dispute between the City and MSD; (2) recited that Forest Hills “does desire to pay to the City * * * or to whomever the Court directs, the said sum of $200.00” per lot; (8) stated the intention of the parties thereto to be that no person (subdivider-developer) should be required to pay more than “one $200.00 tap-in fee per lot in the City”; and (4) stated that they had agreed that Forest Hills “shall pay $200.00 per lot * * * into escrow with Northwestern * * * before the issuance of each building permit by the City * * * and [Northwestern] shall retain said sums until the present litigation between [the City] and [MSD] shall have been finally determined, either by court action or agreement between [the City] and [MSD].” The agreement further provided that should the court determine (1) that MSD has no authority to collect the $200 per lot fee, then Northwestern was required to pay the escrow account to the City, to be accepted and held by the City in accordance with the provisions of Ordinance 391, as amended; but that should the court determine (2) that MSD has such authority, then Northwestern shall pay the escrow account to Forest Hills. Northwestern accepted the escrow agreement and agreed to hold the money paid to it by Forest Hills “under the provisions of this Agreement.” MSD was not a party to this agreement. The agreement made no mention of what disposition should be made of dividends earned by this account.

As development of the several parts of Florland Subdivision progressed, two other similar agreements were executed. The first of these, dated March 11, 1959, was executed by Forest Hills, the City and MSD. It recognized (1) that city Ordinance 391 required the payment of $200 by Forest Hills for each home or building erected on the land annexed “as a consideration for the annexation of all lands annexed by the City after passage of [the] ordinance”; (2) that MSD also requires the payment of $200 for each home or building erected within the district “where trunk sewers are not presently available” to “insure the construction of trunk sewers or treatment facilities”; (3) that a dispute exists between the City and MSD involving the right to require payment of the $200 charge which will be determined by the declaratory judgment action then pending between the City and MSD; and (4) that the City and MSD recognize “that it is unfair and unreasonable to impose both payments on each home erected and [that Forest Hills] is willing to pay to * * * [either of them] * * * $200.00 per unit but is unwilling to make more than a single payment of $200.00 per unit.” Based upon these premises the parties agreed (1) that Forest Hills would pay to Northwestern, as escrowee, $200 for each unit erected; and (2) upon final determination of the suit between the City and MSD, “the fund so held in escrow shall be paid over by the escrowee in accordance with the final decision of the court,” and (a) if in favor of City, the fund “shall be disbursed in accordance with * * * the ordinance,” or (b) if in favor of MSD, it would be disbursed as required by “present existing escrow policy of [MSD] * * *.” The second of these two agreements, dated November 13, 1959, was also executed by Forest Hills, the City and MSD. It recognizes that a declaratory judgment was entered December 18, 1958, in the action brought by the City against MSD and provides (1) that Forest Hills will pay to the City $200 for each home or building erected in the annexed area then being developed (to be deposited in the City’s sewage treatment plant fund as required by Ordinance 891, as amended); (2) that both the City and MSD will issue the necessary permits in consideration of this payment, and (3) that the City and MSD have joint jurisdiction of the money thus paid and will use and disburse the same in accordance with the provisions of Ordinance 391, as amended. Northwestern was not an escrowee party to this agreement.

The collection of sewer connection fees was discontinued shortly after the voters of Coldwater Creek Subdistrict of MSD approved in August, 1960, the issuance of bonds to finance the construction of a trunkline sanitary sewer system and a sewage treatment facility.

The total amount deposited in escrow with Northwestern by Forest Hills for permits for erection of homes in Florland subdivision was $43,200. The dividends thereon, the amount of which is not shown by the record, were paid to Forest Hills.

R. M. Keeney, Jr., president of Forest Hills and of Northwestern, testified that preliminary work in preparation for development of Florland subdivision included the laying out and building of streets, utilities, storm and sanitary sewers and sewage disposal facilities; that the sewage disposal plant of the City was not adequate to handle the homes planned for Florland and those planned and being built by others in newly-annexed areas; that Forest Hills built at its expense the streets, sewers and other facilities and utilities necessary to serve Florland and much of this was completed by the time application was made for its first building permit. He also testified that one of the conditions of the purchase of the land for development as Florland subdivision was that it be annexed by the City; and, that Forest Hills became aware of Ordinance 391 and its requirement that a sewer connection fee be paid when it “got involved in the purchase of the ground” for development as a subdivision. He also testified that Forest Hills objected to payment of the $200 fee for each building permit, but agreed to deposit that amount in escrow with Northwestern as provided for in the three written agreements. He further testified that he signed these agreements as an officer of Forest Hills, but did so under compulsion of Forest Hills’ need to get the building permits. In this connection, he also testified that when he signed these agreements he knew that both the City and MSD required the payment of a $200 sewer connection fee, that there was a dispute between them about this, and that these agreements were entered into as a method of securing building permits by the payment into escrow of only one $200 fee for each home to be built.

The evidence further shows that upon receipt of each of the $200 building permit fees for deposit in the escrow account, Northwestern notified the City of the payment by letter stating: “This money will be paid to either the Metropolitan Sewer District or the City of Florissant when the court has legally adjudicated which one of the two is to receive said money.”

Forest Hills contends that it, not the City, is entitled to the funds deposited with Northwestern, because the peoples’ adoption of a charter for and their organization of MSD in 1954, repealed by implication Ordinance 391 under which the City claimed authority to charge the $200 per home connection fee. The court of appeals did not reach the question this contention presents. Nor do we, for essentially the same reason; i. e.: that Forest Hills may not be heard to attack the validity of the ordinance after seeking and accepting its benefits; that it is estopped from doing so.

In St. Louis Public Service Company v. City of St. Louis, et ah, 302 S.W.2d 875, 879-881[l, 2] (1957) this court, en banc, said: “The rule is well settled that one voluntarily proceeding under a statute or ordinance, and claiming benefits thereby conferred, will not be heard to question its validity in order to avoid its burdens. The same or similar rules have been applied in litigation involving many different types of instruments, licenses, or other transactions. The designation used in referring to this rule or doctrine is obviously unimportant. It is frequently called an estoppel. However, it is akin to the rule against assuming inconsistent positions and it involves the principles of waiver, election, and ratification rather, perhaps, than being limited to the precise principles of equitable estoppel. Regardless of the name of principle designated, the result is clearly the same. It precludes one who accepts the benefits from questioning the validity of the accompanying obligation.” See also: Ewing v. City of Springfield, 449 S.W.2d 681, 688[7, 8] (Mo.App.1970) and Annotation: 65 A.L.R.2d 660, 662 (1959).

In response to the position of the City and MSD that it was estopped from attacking the validity of the ordinance, Forest Hills asserts that its 216 payments of the $200 connection fee required by the ordinance were not voluntary; that its application for and acceptance of the building permits, with its payments into escrow of the fees demanded therefor, were made under duress. The basis of Forest Hills’ argument in this respect is that it had invested considerable money in acquiring the land and in providing streets, water, sewer and other facilities necessary to the development of Florland as a residential subdivision, and that it stood to lose its investment if the City would not issue it permits to build the homes for which Florland had been prepared; that the City refused to issue the permits unless Forest Hills paid the connection fee; that for these reasons it was compelled to pay and deposit in escrow with Northwestern $200 for each permit issued. Forest Hills contends that for these reasons the doctrine of estoppel is not applicable in this case; therefore, it is entitled to recover the money it paid into escrow. We have considered this argument and the cases cited in support thereof. The cases are not applicable to the facts of this case. We are not persuaded by the argument.

The trial court, in a memorandum opinion filed with its judgment, found and concluded from the evidence, including the testimony of the president of Forest Hills, that Forest Hills was “totally familiar with the * * * facts” relative to the requirements of Ordinance 391 when it contracted to buy this land on condition that it be annexed by the City; that Forest Hills was not “compelled, coerced or otherwise put upon to sign” the three escrow contracts or to pay $200 for each building permit issued, but, on the contrary, its acts in these respects were voluntary. In this connection, the court also found and concluded that Forest Hills did not question or intend to question the legality of the ordinance requirement that it pay a $200 sewer connection fee for each building permit issued, or to protest such payment; that its concern was that it pay one $200 fee (not $200 to the City plus $200 to MSD) and that the $200 it did pay be to whomever would be determined to be entitled to it by either an agreement between the City and MSD or the judgment of a court.

We have reviewed the case as required by Rule 73.01 and find no reason not to sustain the judgment that the $43,200 deposited in escrow be paid to the City, Murphy v. Carron, 536 S.W.2d 30, 33[11] (Mo.banc 1976). Moreover, in our review we make the same findings and draw the same conclusions as did the trial court. However, we hold that the trial court erroneously applied the law in awarding interest and accumulated dividends to the City for the same period of time.

As stated, the trial court’s judgment was that the City is entitled to the accumulated dividends produced by this escrow account and interest on each payment made to the account from the date of such payments. The effect of the judgment is to award both dividends and interest for the same period of time. A savings and loan association is obligated to pay “dividends” on accounts of its accountholders, §§ 369.230 and 369.240, but it is not obligated to pay, in addition to the dividends, interest for the same period. Dividends are the “earnings” of a savings and loan association defined in § 369.014(9), RSMo Supp.1971, and § 369.235 as “that part of the net income of an association which is payable to * * * the owners of savings accounts * * *earnings in which “all account holders * * * participate equally * * * pro rata to the participation value of their respective accounts.” The court erred in entering judgment against Northwestern that it pay to the City both the dividends earned by the account and interest on each deposit from the date thereof.

Who is entitled to the dividends earned by this account? And, if the City is entitled to all or any part of the dividends, is it entitled to interest thereon and, if so, when did interest begin to accrue?

Northwestern takes the position that it was required by law to pay the dividends, as it did, to Forest Hills, because Forest Hills was the accountholder of record on its books; that for this reason it should not now be required to pay the dividends or any interest to the City. It relies on subsection 2 of § 369.170 and § 369.235. See also subsection 2 of § 369.154, RSMo Supp.1971. Forest Hills contends that it was the owner of record of the account and as such was entitled, under § 369.235 and subsection 2 of § 369.154, RSMo Supp.1971, supra, to all dividends.

The City takes the position in its brief that it is entitled to (1) all dividends earned by the escrow account from the date of the first deposit therein until December 18, 1958, the date of the judgment in the City’s suit against MSD; (2) interest from that date until the date of the trial court’s judgment in this ease on (a) total amount deposited by Forest Hills in the escrow account as of December 18, 1958, and (b) dividends described in (1) above; and (3) interest on deposits made in the escrow account by Forest Hills after December 18, 1958, from the date of each deposit until the date of the judgment in this case.

Northwestern, in response to the City’s position, contends that it was not bound by the December 18, 1958, judgment, because it was not a party to that suit. It also contends it was not bound by that judgment, because (1) Forest Hills, the City and MSD thereafter entered into an agreement (dated March 11, 1959) requiring that Forest Hills continue to pay into the escrow account $200 for each building permit issued, and that it did so; and (2) that these parties thereafter entered into another agreement (dated November 13, 1959) recognizing the December, 1958, judgment and required that Forest Hills pay the same building permit fee direct to the City to be used for purposes specified in Ordinance 391; but, that instead of making these payments direct to the City they were in fact made to Northwestern for deposit in escrow until sometime in August, 1960, at which time the City began issuing building permits without payment of the fee. Northwestern also contends, in response to the City, that it is not liable for interest for any period of time, because (1) it has not wrongfully withheld this money from the City; and (2) no demand has been made of it for the money.

We are inclined to agree with the City’s argument that in connection with rights to dividends, this escrow account is not, under these facts, quite the same as the ordinary savings account in a savings and loan association; that under these facts the legal relationship of Forest Hills to this account is different from that of an ordinary accountholder or owner to an ordinary savings account, as is also different the legal relationship of Northwestern to the account and its obligations or responsibilities to the parties to the three escrow agreements.

The account was established as a result of a written agreement between Forest Hills and the City which specified its purposes and the conditions under which Northwestern would hold and pay out the amount deposited with it. Northwestern accepted this agreement and agreed to abide by its provisions. The account was recognized and continued by two subsequent agreements. The record indicates that the account was continued until sometime in August, 1960, almost two years beyond the December, 1958, judgment. Northwestern recognized these two agreements also and accepted their terms, although not a party signatory thereto, by continuing to accept each $200 deposit and by sending a letter of acknowledgment of each to the City. In each of these letters it agreed to pay the money to MSD or the City whenever certain events occurred. Northwestern thus recognized that the money in this account was owned either by MSD or the City; that Forest Hills had no interest in the money other than that it be paid to either the City or MSD. Forest Hills, by these three agreements, recognized and agreed that it was not the owner and had no interest in this account other than that it be paid to either the City or MSD, one of which was the owner.

We have the view, and hold, that under these facts Northwestern was not bound under the statutes to recognize Forest Hills as the owner of the account for dividend purposes. Section 369.170, supra, recognizes that an association may acknowledge in writing the interest of a pledgee and be bound thereby although it may otherwise treat the accountholder as the owner for all purposes. Section 369.154, supra, provides that an association may recognize one other than the accountholder as the owner of an interest in an account where “the interest of such person appears in the savings account contract.” In other words, these statutes recognize that there may be exceptions to the language of the statutes that the accountholder be treated as the owner for all purposes; that in some circumstanc es the person in whose name the accoun appears on the association’s books is not tin owner. It may reasonably be concludeo from the association’s record of this account that Forest Hills was not its owner for dividend purposes; that either the City or MSD was. We also have the view, and hold, that Northwestern was not bound by the escrow agreements, or the December 18, 1958, judgment, to recognize either the City alone or MSD alone as the owner of the account for dividend purposes, because (1) the escrow agreements made no provision for payment of dividends to either one of them to the exclusion of the other; and (2) aside from the fact Northwestern was not a party to the suit out of which the judgment arose, the judgment did not award the escrow account to one of them alone but gave them joint control thereof for specified purposes. Before our decision in this case, Northwestern could have paid the dividends only to the City and MSD jointly.

It was not until the City and MSD filed their joint cross-claim against Northwestern seeking judgment in favor of the City alone for the escrow funds and dividends, and the entry of a final judgment thereon, that Northwestern safely could pay the dividends to either of those cross-claimants, because prior to that time there had been neither a judgment which clearly determined which one of the two cross-claimants was entitled to the funds nor an agreement between them as to which one was to receive the funds. The last of the three agreements (dated November 13, 1959) between Forest Hills, the City and MSD appears to settle upon the City as the one to whom all the funds shall be paid because it provides that the $200 connection fees for subsequent building permits be paid direct to the City. However, as we have noted, they ignored this provision by continuing to pay the connection fee to the escrow account.

The City is entitled to the dividends earned by this escrow account from its beginning until the date of the judgment entered pursuant to this opinion; Forest Hills is not. Northwestern’s liability therefor is based on contract: its acceptance of the deposits to the account and agreement to pay the funds to whomever was determined to be the owner thereof. The City is entitled to interest only on the judgment entered pursuant to this opinion.

Equity will not countenance a result that would require Northwestern to pay twice the dividends earned by this account. As noted, Northwestern has paid the dividends to Forest Hills. It did so because it believed that under the statutes to which it refers it was required to recognize Forest Hills as the owner of the account for dividend purposes. We have held that under the facts of this case it was not required to do so. Accordingly, it is entitled to judgment over against Forest Hills for the amount of the dividends it has paid to Forest Hills by reason of this escrow account. Upon remand Northwestern may, if it desires to do so, amend its pleading to seek judgment against Forest Hills in the amount of these dividends.

That part of the judgment in favor of the City and MSD and against Forest Hills on Forest Hills’ petition is affirmed. That part of the judgment in favor of the City and against Northwestern for $43,200 on the cross-claim is affirmed. The balance of the judgment is reversed and the case is remanded with directions that the trial court determine the amount of dividends earned by the escrow account and enter additional judgments as follows: (1) in favor of the City and against Northwestern for the amount of dividends earned; (2) in favor of Northwestern and against Forest Hills for the amount of the earned dividends it has paid to Forest Hills, if Northwestern amends its pleading as herein authorized; and (3) tax the costs against Forest Hills.

BARDGETT, FINCH, DONNELLY and SEILER, JJ., and TURNAGE and DIXON, Special Judges, concur.

MORGAN, C. J., and RENDLEN, J., not sitting.

      . This judgment, entered pursuant to an agreement between MSD and the City, declares, in substance: (1) that city Ordinance 391, as amended, is valid and enforceable; (2) that “the collection of $200.00 per house by “MSD” * * * from property lying outside the boundaries of the City * * * where there is no escrow policy in conflict therewith, is reasonable and lawful * * * (3) that the ultimate aim of both parties is basically the same; and (4) that the monies collected be used for the purposes set out in Ordinance 391, as amended, under the joint jurisdiction and control of the City and MSD.

      . In support of its position, Forest Hills cites the following cases: Union Pacific Railroad Company v. Public Service Commission of Missouri, 248 U.S. 67, 39 S.Ct. 24, 63 L.Ed. 131 (1918); Atchison, Topeka and Santa Fe Railway Co. v. O’Connor, 223 U.S. 280, 32 S.Ct. 216, 56 L.Ed. 436 (1912); Robertson v. Frank Brothers Company, 132 U.S. 17, 10 S.Ct. 5, 33 L.Ed. 236 (1889); Women’s Kansas City St. Andrew Society v. Kansas City, Missouri, 58 F.2d 593 (8th Cir. 1932); Steinger v. Smith, 358 Mo. 39, 213 S.W.2d 396 (1948); Brink v. Kansas City, 355 Mo. 860, 198 S.W.2d 710 (1946); St. Louis Brewing Association v. City of St. Louis, 140 Mo. 419, 37 S.W. 525 (1896) (see also, per curiam opinion on motion for rehearing, 140 Mo. 419, 41 S.W. 911 (1897)); Watkins v. Floyd, 492 S.W.2d 865 (Mo.App.1973); National Alfalfa D & M Co. v. 4010 Washington, Inc., 434 S.W.2d 757 (Mo.App.1968); John Hancock Mutual Life Ins. Co. v. Dawson, 278 S.W.2d 57 (Mo.App.1955).

      . References to sections of the statutes are to RSMo 1969, unless otherwise indicated.

      . Subsection 2 of § 369.170 is as follows: “The association may treat the account holder of record on the books of the association as the owner for all purposes without being affected by any notice to the contrary, unless the association acknowledge in writing, or there is served upon it by an officer empowered to make service of legal process, notice of a pledge in which case notice of the pledge shall be entered upon the record of the account and the pledgee shall be protected.”
      Section 369.235 provides, in part, as follows:
      “All account holders shall participate equally in dividends pro rata to the participation value of their respective accounts * * *

      .Subsection 2 of § 369.154 provides, in part, as follows: “Savings accounts may be opened and owned by any one or more persons, * * *; shall be represented on the books of an association by a separate account in the name of the owner thereof; and * * * [a]n association shall be under no duty to determine the ownership of the funds received by it for any savings account and shall treat the account holder of record as shown by the savings account contract as the owner for all purposes. An association shall not be liable to any person claiming any interest in a savings account unless the interest of such person appears in the savings account contract * * *

      . See footnote 1.


author: RENDLEN, Judge.

text:
    Herschel WATSON, Geneva Mitch, Ruby Kemp and Grace Leber, Appellants, v. Herbert WATSON, Executor of the Estate of George Henry Watson, Deceased, Respondent.
    No. 59948.
    Supreme Court of Missouri, En Banc.
    Feb. 8, 1978.
    Rehearing Denied March 13, 1978.

      William Harrison Norton, Norton & Pollard, Inc., Kansas City, for appellants.
    J. David Collins, Collins & Grimm, Macon, for respondent.
   RENDLEN, Judge.

This case was transferred from the Kansas City District of the Court of Appeals after opinion and it is decided here “the same as on original appeal.” Mo.Const., Art. V, § 10. Portions of the appellate court opinion are adopted without quotation marks.

Herbert Watson, Executor of the Estate of George Henry Watson, deceased, was named as defendant in his representative capacity and also as an individual legatee in the body of a petition contesting decedent’s will. However the caption of the petition and the summons referred to Herbert only in his capacity as executor and failed to name him as an individual. We must determine whether such shortcoming was fatal to petitioners’ (appellants’) action.

The trial court sustained respondent’s motion (made in his representative capacity) to dismiss on December 23, 1973, because of petitioners’ failure to comply with § 473.083-4, RSMo 1969, which provided: “In any such action the petitioner shall proceed diligently to secure and complete service of process as provided by law on all parties defendant. If service of process is not secured and completed upon all parties defendant within sixty days after the petition is filed, the petition, on motion of any defendant, duly served upon the petitioner or his attorney of record, in the absence of a showing by the plaintiff of good cause for failure to secure and complete service, shall be dismissed by the circuit court at the cost of the petitioner.”

The petition was filed with the parties as named in the caption on this appeal and summons was directed to “Herbert Watson, Executor of the Estate of George Henry Watson, Deceased, Route # 2, Callao, Missouri.” The sheriff’s return recites that he made service “[b]y delivering on the 14 day of July, 1973, a copy of the summons and a copy of the petition to each of the within-named defendants Herbert Watson, Excu-cuter [sic] of the Estate of Geo. Henry Watson Dec’d.” No other service was sought or obtained.

The “last will and testament” of George Henry Watson recites that he had five children; Herschel Watson, Geneva Mitch, Herbert Watson, “Rubey Kent [sic]” and Grace Leber. Nothing was given to Geneva, Ruby (Kemp) or Grace because, as stated in the will, “I have helped them get a good education and they are married and have good homes and my estate is not large enough to make provision for them.” Herschel Watson was given $800.00 as his full share of the estate. The residue was given to Herbert Watson as his sole and absolute property with this recital: “I make this provision for my son, Herbert Watson, for the reason he has been with me and has helped me make what small estate I have and if it had not been for his services I would not have been able to accumulate what I now have, and it is for this reason I make this bequest to my son, Herbert Watson.” Herbert Watson was nominated executor and the will was subscribed by the testator April 14, 1951.

In paragraph three of the petition it was alleged “That on or about the 28th day of February, 1973, letters testamentary were issued by said Probate Court to the defendant Herbert Watson as executor of said pretended will.” The petition further alleged that the paper writing was not the will of George Henry Watson; that he was not at the time of execution of sound mind nor did he have the mental capacity to make a will and “[t]hat the making and signing of said instrument was procured by the undue influence of the defendant Herbert Watson, the son of George Henry Watson, deceased.” Further, that the real and personal property of the estate approximates $64,594.00, and “the plaintiffs and the defendant are all of the heirs of the said George Henry Watson, deceased; that the defendant Herbert Watson is the son of the said George Henry Watson; and that the plaintiffs are the daughters and son of the said George Henry Watson.” Finally in the prayer, petitioners requested “that said pretended will be declared void and of no effect.”

It is well established that legatees are necessary parties in an action to set aside a will, Cole v. Smith, 370 S.W.2d 307, 309 (Mo.1963) and that a petitioner on filing a suit contesting the will must then “proceed diligently to secure and complete service of process as provided by law upon all parties defendant.” Section 473.083, RSMo 1959. For reasons hereinafter discussed we hold that Herbert Watson as a legatee was duly served as an individual, though in the caption of the petition and in the summons he is referred to only in his capacity as executor.

Herbert Watson and appellants are described in the petition contesting the will as heirs of the deceased George Henry Watson and as legatees under his will. In those capacities they comprise all parties necessary to the suit. It is alleged that George Henry Watson lacked testamentary capacity and that execution of the will was procured by the undue influence of Herbert Watson. These allegations, if proved, would void the will and defeat Herbert Watson’s residual bequest. They are directed toward him personally, not in his capacity as executor. A copy of the petition was delivered at the time of service of the summons upon him and though the summons refers to him only in his capacity as executor, he personally had knowledge that the petition’s purport was to divest him of his individual interest in the estate under the will and the allegations concerned events occurring prior to Geroge Watson’s death and necessarily before Herbert Watson became executor. For these reasons the words “Executor of the Estate of George Henry Watson, Deceased” in the caption of the petition may be treated as surplusage in relation to the service upon Herbert Watson individually and here he is deemed to have been sued in his individual capacity as a beneficiary under the will.

Stated somewhat differently, the technical defect of the summons designating Herbert Watson in only his representative capacity (as does the sheriff’s return), was effectively corrected by Herbert Watson’s having been named individually in the petition as a beneficiary under the will, and as

one of the children of the testator and as the one who procured the will by undue influence. It is clear appellants intended to and did sue him as an individual. The fact that respondent’s designation in the summons was incorrect (a mistake understandably repeated by the sheriff in his return) does not defeat the action because the petition accompanying and served with the summons explained and clarified the writ. Those instruments when read together gave notice to the person receiving them that he as an individual was the intended defendant and the improper designation or reference to his representative capacity did not deprive the court of jurisdiction as to defendant Herbert Watson individually.

To like effect this court in State ex rel. Sullivan v. Cross, 314 S.W.2d 889 (Mo.banc 1958), held that defects in the summonses and notices to the defendants in a wrongful death suit were effectively cured when considered in conjunction with the petition served therewith and that inaccuracies of the process did not deprive the court of jurisdiction. That case involved a wrongful death action arising from an automobile collision in which plaintiff’s decedent Charles Reed, a Missouri resident, was killed as were Richard Sullivan and Lorenzo Plog, driver and owner respectively, of the other vehicle involved. The latter were residents of Nebraska. The widow of Charles Reed filed her petition in Missouri and in the caption properly stated the relations of the parties defendant, i. e. Theresa Plog, administratrix of the estate of Lorenzo Plog, deceased, and Edith Sullivan, adminis-tratrix of the estate of Richard Sullivan, deceased. However, the petition failed to specifically allege the deaths of Sullivan and Plog, their respective residences or the appointments of their legal representatives. Plaintiff prayed for an order permitting service under the nonresident motorists statute but when referring to the defendants erroneously added “who were using the highways” of Missouri. Summonses were mistakenly issued to “Edith Sullivan, Administratrix” and “Theresa Plog, Admin-istratrix” with no mention of the estates each was allegedly representing. The defective summonses with copies of the petition, were served on the Chief Clerk of the Secretary of State who in turn, as required by law (§ 506.240 and § 506.250), mailed copies thereof to each defendant with a notice advising of the institution of the suit, of the service and the date thereof. The statutory notice to Theresa Plog erroneously described her as “Administratrix of the Estate of Richard Sullivan, Deceased.” Neither defendant denied having received the notice, the summons or service copy of the petition, and similarly Herbert Watson has not denied receiving the summons and petition in the case at bar. There, defendants appeared specially and moved to quash the service, challenging the sufficiency of the process to confer jurisdiction as to necessary parties defendant. The court in Cross, at 891, characterized the petition as “inept,” but stated, “ . . . it is perfectly obvious that no one has been misled” and when discussing the defects of the summonses and the statutory notices stated: “Considering together the copies of the petition, the summonses, the notices, and the actual receipt of these by the proper parties, the inaccuracies were not such as to invalidate the summonses or the notice, or to deprive the court of jurisdiction.” The summonses served upon the defendants named them as administratrices but failed to mention the estates they represented. Further, in the notice mailed by the Secretary of State, one of the administratrices was mistakenly referred to as representative of an estate with which she had no connection. Thus the argument which the defendant makes in the case at bar that he was served in the wrong capacity was essentially the same as that directed to the process in Cross. Nevertheless the allegedly defective summonses when read with the “inept” petitions in that case were sufficient to establish the jurisdiction of the court as to the necessary parties defendant and so it is here.

This court in Peerless Supply Co. v. Industrial Plumbing and Heating Co., 460 S.W.2d 651 (Mo.1970) cited State ex rel. Sullivan v. Cross favorably and reiterated the rule “that a summons served upon the right party by a wrong name is well served.” [l.c. 665] By construing the petition in connection with and as explanatory of the summons, it may be said we give effect to a clearly defined intent which in no way has misled this defendant and by so doing we prevent the defeat of justice through a mere mistake. The court acquired jurisdiction and the technical defects in the caption and summons are correctable by appropriate amendment.

Further, though Herbert Watson, in his capacity as executor, is not a necessary party to this will contest proceeding, it is apparent that the summons and petition were sufficient to serve him in his representative capacity as well as individually.

The judgment is reversed and the cause remanded for further proceedings with directions that amendment of the process be made to show service upon Herbert Watson individually.

All concur.

      . The petition filed July 11, 1973, was not affected by a subsequent amendment to the statute extending the time for service of process to 90 days following filing of such petition.

      . The cases cited by respondent in which will contest proceedings were dismissed under § 473.083, supra, are distinguishable on their facts. In Kane v. Mercantile Trust Co. Nation
        al Association, 513 S.W.2d 362 (Mo.1974), there was a failure to name and serve a legatee pastor to whom a $500.00 bequest had been given for the saying of masses. In Doran v. Wurth, 475 S.W.2d 49 (Mo.1971), four legatees had not been named or served within 60 days, the parties agreeing that they were necessary parties to the suit. Sanderson v. Richardson, 432 S.W.2d 625 (Mo.App.1968), involved the failure to join and to complete service upon a specific legatee (library association) within 60 days. None of these cases involve a situation in which a party named as an executor in the caption and the body of the petition was also named as an individual legatee (residuary beneficiary) in the body of the petition. Generally the body of the pleading, not the caption, determines the parties necessary to the prosecution of the action. See Wolff v. Ward, 16 S.W. 161, 169 (1891); Cook v. Wheeler, 218 S.W. 929 (Mo.App.1920); Boyajian Bros. v. Reinheimer, 229 S.W. 441 (Mo.App.1921), aff’d 250 S.W. 364 (Mo.1923); Fair v. Thompson, 240 Mo.App. 664, 212 S.W.2d 923 (1948); and Barnett v. Schumacher, 453 S.W.2d 934, 937[4-9] (Mo.1970).

      . Plaintiff’s counsel having been alerted by the motions to the referenced errors filed an amended petition specifically alleging the residences of Sullivan and Plog, their deaths, and the appointment of their respective administra-trices. Copies of the amended petitions were mailed to defendants’ attorneys who had previously made special appearance. It should be noted, however, the question was decided solely on the efficacy of the original process, not the attempted amendments served by mail on defense counsel.

      . The executor nominated by the will was not a necessary party to a proceeding contesting the will under the facts here presented. No reported Missouri case has been found deciding the precise point but in Freeman v. De Hart, 303 S.W.2d 217 (Mo.App.1957), it was held under a somewhat unique factual situation that an executor of a will admitted to probate prior to that in contest was not a necessary party plaintiff. There John C. Kappel, nominated executor under the previously probated will, joined as plaintiff in the action contesting the subsequent will and a motion to dismiss was filed, urging that contestants were not proper parties under § 468.580, RSMo 1949 (now § 473.083, RSMo 1969). The court dismissed as to Kap-pel, but overruled the motion as to other contestants, (the Freemans) who, after an unfavorable verdict, appealed. The court at page 222 stated: “It appears that all persons named as devisees and legatees in the will in question were joined as defendants. Under such circumstances, assuming that Kappel [as executor] was a person interested in the estate, it was not necessary, under the decisions, that he be joined as a party plaintiff.” [Brackets added.] The cases there cited hold to the same effect.
      Some authorities provide general statements that an executor named in a will is a necessary party defendant to a will contest proceeding. At 3 Page on Wills, § 26.67, p. 145, it is said, “The executor, under the practice now prevalent in most states, should be a party to the contest, and may defend the will. He is said to be a necessary party.” The cases footnoted in Page have been examined and most require by statute that the executor be made a party. Among those cited is Morisse v. Billau, 70 Ohio App. 215, 45 N.E.2d 798 (1941), in which the caption of the petition did not name the executrix but she was so named in the petition with all the devisees, legatees and heirs at law. Appropriate to our holding herein, the court said at page 799[1, 2], “The petition, not the caption, determines the parties necessary to the prosecution of the action.” In Bessire v. Fisher, 96 Ohio App. 465, 122 N.E.2d 491 (1953) and Martin v. Mansfield Savings & Trust Nat. Bank, 92 Ohio App. 465, 110 N.E.2d 814 (1952) it was held that service of summons upon an individual in that capacity does not constitute service upon him in his fiduciary capacity. Ohio by statute required that the executor be named a party to a will contest. Other cases cited by Page holding that an executor is a necessary party to a will contest, but without suggesting the rationale for such holdings, include Dyar v. Dyar, 160 Ga. 469, 128 S.E. 582 (1925); Yeates v. Yeates, 162 Ga. 153, 132 S.E. 768 (1926); Furr v. Jordan, 196 Ga. 862, 27 S.E.2d 861 (1943); In re Lieurance’s Estate, 181 Or. 646, 182 P.2d 969, 978 (1947).
      The Supreme Court of Kansas in Marr v. Barnes, 126 Kan. 84, 267 P. 9, 11[3] (1928), rejected the contention that an executor is a necessary party to a will contest and set forth its persuasive rationale for the rule. The court in Marr stated: “Cases can readily be conceived where the litigation could proceed to no purpose without the executor’s participation, and doubtless that is the reason the rule is so broadly stated by some of the authorities that he is a necessary part to a suit to set aside a will. Borland, supra, [Borland on Wills and Administration] 209, 210; 40 Cyc. 1262; 28 R.C.L. 392. If the executor’s duties were more than perfunctory, if a judgment affecting the validity of a will would materially interfere with his sworn duty or hinder him in the execution of some particular trust imposed on him by its terms, he would, of course, be a necessary party. Statute law would or might effect the question whether a conclusive contest over the validity of a will could be maintained without the executor being a party to the action. The decided cases in other jurisdictions are not all to one effect. * * [Brackets added.] See also Johnson v. Donley, 133 Kan. 73, 299 P. 270, 272 [1, 2] (1931); and note King v. King, 242 S.W.2d 925, 929 (Tex.Civ.App.1951).
      In this case the duties of Herbert Watson, as executor, are no more than perfunctory. He has no special power as to any asset of the estate and holds none in special trust for any purpose. The executor is merely to collect the assets and pay the debts, dispense one specific bequest to Herschel Watson of $800.00, and distribute the balance of the estate under the terms of the will to himself as residuary legatee. At 3 Maus, Probate Law and Practice, § 285, p. 253, referring to In re Soulard’s Estate, 141 Mo. 642, 43 S.W. 617 (1897) and In re Fry’s Estate, 96 Mo.App. 208, 70 S.W. 172 (1902), it is said, “The executor is customarily joined as a defendant and it is his duty to make formal proof of the will, in the absence of such proof by another person, but he is not to enter into the active contest of the will. If he does do so, he is acting as an individual and not as an executor and cannot deduct the costs of the contest from the assets of the estate.” It is also stated in the same section of Maus, p. 252, citing Eddie v. Parke’s Ex’r, 31 Mo. 513 (1862), that “As an action to contest or establish a will is an in rem action and the judgment therein affects the res, the will, all those interested in that res must be parties to the action.” See Gerhardt v. Miller, 532 S.W.2d 852 (Mo.App.1975).


author: MORGAN, Chief Justice.

text:
    ST. LOUIS COUNTY, Missouri, a body corporate and politic, Appellant, v. STATE TAX COMMISSION of Missouri, J. E. (Jim) Riney, Don G. Williams, and Robert F. Love, Members of the State Tax Commission of Missouri, and McDonnell-Douglas Corporation, Respondents.
    No. 59494.
    Supreme Court of Missouri, En Banc.
    March 13, 1978.

      Thomas W. Wehrle, George W. Lang, II, Clayton, for appellant.
    Robert G. Brady, James E. Reynolds, Jr., Bryan, Cave, McPheeters & McRoberts, St. Louis, for respondents.
    Larry B. Luber, John H. Quinn, St. Louis, amici.
   MORGAN, Chief Justice.

This case involves construction of a revenue law of this state, specifically the Manufacturers’ License Tax, §§ 150.300 et seq., RSMo 1969, which provide (§ 150.310), in part, that: “Every manufacturer in this state shall be licensed and taxed on all raw material and finished products, as well as all the tools, machinery and appliances used by them, in the same manner as provided by law for the taxing and licensing of merchants . . . ”

By notice dated 4 June 1974, the St. Louis County Board of Equalization raised the inventory valuation of McDonnell-Douglas Corporation, for purposes of the 1974 Manufacturers’ License Tax, from $35,642,766 to $44,187,766, which increased the assessed valuation from $11,880,922 to $14,729,250. It seems agreed that said increase reflected the added value given to work-in-process in excess of the value of the raw material content of such work-in-process.

McDonnell-Douglas appealed to the State Tax Commission which reinstated the lesser figure after concluding that § 150.310 “does not contemplate or authorize the taxation of work-in-process, other than the true value of the material content thereof . . ” The county sought review of that decision (§§ 536.100 et seq., RSMo 1969) where the instant case was consolidated with seven other actions pending on the same issue. By judgment, the trial court affirmed the commission.

The county has appealed to this court only with respect to McDonnell-Douglas although General Steel Industries, Inc., and Debron Corporation, parties to the consolidated action in the trial court, have filed a brief as amicus curiae.

The first question is whether, for purposes of the manufacturers’ tax, work-in-process should be assessed only to the extent of the aggregate cost of raw material content or whether work-in-process valuation should include “value added” to raw materials, if any, by labor and overhead during the manufacturing process.

The statute in question, and heretofore noted, does not refer explicitly to “work-in-process” but allows a tax on all “raw material and finished products . . . ” Nevertheless, this court has held that work-in-process is subject to the tax as “raw materials.” Mesker Brothers Industries, Inc. v. Leachman, 529 S.W.2d 153 (Mo.1975). As said at 157-58: “ . . . the legislature intended to tax all the material at any stage, entering into the final product; hence . . . raw material must be construed to include work-in-process. To rule otherwise . . . would accomplish an unreasonable and absurd result. There could be no reasonable purpose in omitting from the tax a very substantial portion of plaintiff’s taxable personal property simply because some work (little or much) had been done upon it . We believe that the legislature intended to tax all of plaintiff’s tangible personal property used in the manufacturing process.” At that time, the court declined to rule on the contention of amicus curiae (one of the respondents in this case) that work-in-process, if taxable, should be valued and taxed merely at the value of the raw material content and not including the “value added” by other factors such as labor.

Article X, § 4(b), of the Missouri Constitution requires that all real and tangible personal property be assessed for tax purposes at the value as may be fixed by law. This has been interpreted to mean that “ . . . such property must be assessed on the basis of ‘actual or real value.’ ” Robert Williams & Co. v. State Tax Commission, 498 S.W.2d 527, 528 (Mo.1973). Thus, the question is: should not factors, which are essential to the creation of a salable product and which constitute money invested in the merchandise, properly be included in the valuation of an inventory which includes that product?

In Stephen and Stephen Properties, Inc. v. State Tax Commission, 499 S.W.2d 798 (Mo.1973), this court declared, l.c. 802, that: “A tax assessment, though presumed valid, will not be upheld where it is clear that the assessment does not take into account all factors relevant to a determination of ‘true value in money.’ ” See also Meadowbrook Country Club v. State Tax Commission, 538 S.W.2d 310 (Mo.1976); and, compare McKay Buick, Inc. v. Spradling, 529 S.W.2d 394 (Mo.banc 1975).

The county cites three cases from foreign jurisdictions thought to sustain its position.

The first is Aeronautical Communications Equipment, Inc. v. Metropolitan Dade County, 219 So.2d 101 (Fla.App.), cert. denied, Fla., 225 So.2d 911 (1969). Therein, the court considered the question of valuation of plaintiff’s “stock in trade,” and concluded that where the taxpayer’s stock in trade consisted of work-in-process, labor applied to raw materials must be considered. At 105, it was said that: “ . . . appreciation is one of the criteria, as it affects the condition of the goods. Labor applied to raw materials appreciates the value of the raw materials.” We recognize McDonnell-Douglas’s argument that in the cited case the taxpayer sought an unreasonably low “junk value” assessment and that the court, faced with this unrealistic scrap value approach, approved the county’s more convincing method of valuation. Regardless of the validity of the argument, it is true nevertheless that the opinion does stand for the fact that an assessor should consider factors other than original costs.

The second is Appeal of AMP, Inc., 287 N.C. 547, 215 S.E.2d 752 (1975), wherein the Supreme Court of North Carolina stated that: “ . . .in determining the true value in money of AMP’s nondefective in-process inventory, we believe that the proper valuation standard would be the cost of replacing the inventory plus labor and overhead. In terms of a formula, this equals replacement cost plus labor and overhead.” Id. at 768.

The third is General Motors Corp. v. State Board of Tax Appeals, 125 N.J.L. 574, 16 A.2d 632 (Ct.Err. & App.1940). It is apparently cited by the county by reason of the court’s use of the “cost” method of valuation; but, McDonnell-Douglas submits that the case supports its “cost method of valuation.” We do not believe the case is persuasive or helpful to either side. It does not resolve whether a cost method should include all costs, i. e., labor and overhead or whether it should include only the aggregate costs of raw materials.

The county, thereafter, cites American Mfg. Co. v. City of St. Louis, 270 Mo. 40, 192 S.W. 402 (banc 1917), to emphasize the tax upon merchants and manufacturers is a tax upon property. It is then submitted that one may not, consistent with § 4(b), Article X of the Missouri Constitution, arbitrarily state that work-in-process can be valued only at its raw material content regardless of how much value has been added thereto; and, that to do so would be totally foreign to an “ad valorem” tax, which must be based on true or real value.

Respondent, McDonnell-Douglas, does not refer us to any ease, factually comparable, which rejects the county’s position. Argument is made, however, that (1) “there is no definition in the record defining the term ‘added value,’ no description of the exact composition or make-up of that figure, and no evidence as to how the ‘value added’ figure was computed,” and that (2) “The Commission’s power of equalization and review includes the power to choose among methods of valuation and to make those methods uniform . . . ” and that “The Court may not substitute its discretion for the discretion vested in the Commission in this area unless the Commission’s findings involve an abuse of discretion.” The two points will be considered in order.

As to point (1), it is true that speculative assumptions cannot be approved in cases involving the assessment of taxes. Frontier Airlines, Inc. v. State Tax Commission, 528 S.W.2d 943 (Mo. banc 1975). However, respondent cannot rely on the argument it now makes. This, for the simple reason it is admitted that the parties stipulated as to the “value added” amount, which may well explain why the county did not build a complete record precisely developing the same. In its brief, respondent now contends that the stipulation was entered into solely “to put a ceiling on the amount of taxes in controversy” because of the “vagaries and unknowns inherent in Appellant’s method of valuation.” Even though the argument be accepted at face value, the fact remains that in lieu of evidence there was a stipulation and neither party should be prejudiced thereby. The stipulation, at the time, avoided tax delinquencies and created a vehicle for the payment of a tax and issuance of a license pending resolution of the litigation. Our subsequent disposition of this case makes the point moot in any event.

As to point (2), respondent relies on the limitations placed on appellate review by this court in Xerox Corporation v. State Tax Commission, 529 S.W.2d 413 (Mo. banc 1975), and quotes from page 416 thereof, to-wit: “In performing this particular function, the Commission is acting as ‘an “administrative arm” of the Legislature,’ and its actions are primarily ‘legislative in character.’ Missouri Southern R. Co. v. Public Service Commission, 279 Mo. 484, 214 S.W. 379, 380 (1919). In this particular situation, involving the exercise of administrative discretion, we believe the courts should not interfere unless there is an abuse of such discretion.” See also St. Louis County v. State Tax Commission, 406 S.W.2d 644 (Mo. banc 1966); Taney County v. Empire District Electric Company, 309 S.W.2d 610 (Mo.1958).

We reaffirm our holding in the Xerox case but find it inapplicable to the immediate issue. Where an administrative decision resolves an issue of fact, a reviewing court may not substitute its own judgment for that of the agency, if its findings of fact are supported by competent and substantial evidence. “On the other hand, where an administrative decision is clearly based upon the agency’s interpretation or application of the law, the administrative conclusions of law and decision based thereon are matters for the independent judgment of the reviewing court, and correction where erroneous.” State Board of Registration for Healing Arts v. Masters, 512 S.W.2d 150, 158 (Mo.App.1974). “In other words, there is no discretion lodged in the administrative body that in any way restricts or limits the right and duty of the court to interpret the law applicable to the case before it.” Gilmore v. Thompson, 413 S.W.2d 20, 22 (Mo.App.1967). See also Wolf v. Missouri State Training School for Boys, 517 S.W.2d 138 (Mo. banc 1974); Smith v. Missouri State Highway Commission, 488 S.W.2d 230 (Mo.App.1972); Crawford v. Industrial Commission, 482 S.W.2d 739 (Mo.App.1972); and, Kroger Company v. Industrial Commission of Missouri, 314 S.W.2d 250 (Mo.App.1958).

We have no difficulty in finding that this court has the power to interpret the statute in question and decide the question of law presented without restraint or restriction.

The two decisions of the Supreme Court of the United States cited by amicus curiae do not dissuade us. In Dobson v. Commissioner of Internal Revenue, 320 U.S. 489, 64 S.Ct. 239, 88 L.Ed. 248 (1943), the court did point out the special problems involved in judicial review of tax questions, but went on to note that whether a Tax Court’s decision was in accordance with law was “ . . .a clear cut question of law and is for decision by the Courts.” Id. at 492-93, 64 S.Ct. at 242, N.L.R.B. v. Hearst Publications, Inc., 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1171 (1944), the other case cited, is distinguishable. Therein, the court was dealing with a rather special statutory responsibility afforded the Board in contrast to the general statute now in question. Of immediate interest, however, is the court’s observation, l.c. 130-31, 64 S.Ct. 860, that: “Undoubtedly questions of statutory interpretation, especially when arising in the first instance in judicial proceedings, are for the courts to resolve, giving appropriate weight to the judgment of those whose special duty is to administer the questioned statute.”

We pause to make an observation which tends to simplify the underlying problem, i. e., raw materials may depreciate or appreciate in value as they proceed along an assembly line — a possibility which exists herein. For that reason we are not in a position to declare, in this case, that an airplane wing only one turn of a screwdriver from being a finished product has a “true” or “actual” value only of its raw material content. Necessarily, we must reverse the holding of the Tax Commission to the contrary, which was predicated upon its resolution of a question of law and not upon a factual finding.

We hold that the statute in question shows an intent to assess all of a manufacturer’s inventory for licensing purposes. Under the law, this must entail an assessment of such property that includes all relevant factors to arrive at a true or actual value. In doing so, the Commission should follow the dictates of the Xerox, case, supra, in designing a formula for assessment, and absent “an abuse of discretion” this case can provide that guidance the parties have assigned to it.

The judgment is reversed and the cause is remanded for further proceedings consistent with this opinion.

All concur.


author: BARDGETT, Judge.

text:
    Gene ROBERTS, Contestant-Appellant, v. L. E. (Jim) BOLIN, Contestee-Respondent.
    No. 59920.
    Supreme Court of Missouri, En Banc.
    March 13, 1978.

      R. Jack Garrett, Clyde Butts, Garrett & Butts, West Plains, for contestant-appellant.
    Leland Negaard, Eminence, for contes-tee-respondent.
   BARDGETT, Judge.

This is an election contest wherein Gene Roberts, contestant-appellant, contests the election of L. E. (Jim) Bolin, contestee-re-spondent as sheriff of Shannon County, Missouri. This court has jurisdiction because the case involves title to an “office under this state.” Mo.Const. Art. V, § 3; Kasten v. Guth, 395 S.W.2d 433 (Mo.1965); Noonan v. Walsh, 364 Mo. 1169, 273 S.W.2d 195 (1954); State on inf. McKittrick v. Williams, 346 Mo. 1003, 144 S.W.2d 98 (Banc 1940); State ex rel. Davidson v. Caldwell, 310 Mo. 397, 276 S.W. 631 (1925).

Gene Roberts was the Republican candidate and L. E. (Jim) Bolin was the Democratic candidate for sheriff at the general election held November 2, 1976. Contestee was certified to have 1,647 votes and contestant was certified to have 1,298 votes. On November 18, 1976, contestant filed his “Notice of Contest” with the circuit clerk of Shannon County which was duly served on contestee. On November 26, 1976, contestant’s petition was dismissed by the court on its own motion, without notice or an opportunity to be heard, for failure to state a cause of action.

The case of Gladden v. Kansas City, 411 S.W.2d 228 (Mo.1967), and its predecessors is decisive on the issue of whether the court erred in dismissing contestant’s notice of contest on its own motion without prior notice or hearing. In Gladden the plaintiffs filed a petition instituting a class action. The defendants answered and plaintiffs filed a reply. The plaintiffs then filed a motion for summary judgment which was overruled. Some months later the case was dismissed by the court on its own motion without notice to plaintiffs and without a hearing. The Supreme Court stated at 229-230:

“In Bindley v. Metropolitan Life Ins. Co., supra [358 Mo. 31, 213 S.W.2d 387], this court said this: ‘Notice and a hearing, or an opportunity to be heard, have long been considered essential to due process, to a decision on the merits of a cause and to the deprivation of rights and property.’ Reference was made to various motions authorized by the then code of civil procedure which resulted a final adjudication of a cause, and it was held that ‘Such motions require notice and a hearing or an opportunity to be heard, where the party is not in default for failure to appear.’ In Hoppe v. St. Louis Public Service Co., 361 Mo. 402, 235 S.W.2d 347, 23 A.L.R.2d 846, judgment for defendant pursuant to a jury verdict was entered in plaintiff’s action for personal injuries. Plaintiff’s motion for new trial was filed out of time and was a nullity. Thereafter, but within thirty days after judgment, the trial court of its own motion but with no notice to defendant granted plaintiff a new trial on the ground that the verdict was against the weight of the evidence. This court stated that the question for decision ‘concerns not the power of the court to order the vacation of a judgment,’ but that ‘[w]e are here concerned only with the manner of the exercise of such power.’ The court then held as follows: ‘In our system of jurisprudence reasonable notice to a litigant (when there exists even the possibility of action adverse to his interests) is deemed to be of the essence of fairness and justice. Reasonable notice to parties whose interests are at stake in a contemplated order is a prerequisite to the lawful exercise of the court’s power. Opportunity for a litigant to present his views as to matters instantly before the court which may affect his rights is the very foundation stone of our procedure.’ The order granting a new trial in the Hoppe case was set aside, and we are of the opinion and hold that the dismissal with prejudice of a petition without notice is subject to the same rule.”

Contestee relies on State ex rel. Hartly v. Gideon, 225 Mo.App. 459, 40 S.W.2d 745 (1931), and § 124.280, RSMo 1969, in support of his argument that the court acted within its discretion. In Gideon at 746 it was held that the laws fixing jurisdiction and providing procedure in a contested election case are a law unto themselves and the general code of procedure is inapplicable. While that is generally true, there is nothing in the election contest statutes which authorizes the court to simply sua sponte dismiss a contestant’s “notice of contest of election” (petition) without notice or the opportunity to be heard on the matter. Nor does the provision of § 124.280, which provides that “Every court authorized to determine contested elections shall hear and determine the same in a summary manner, without any formal pleading,” authorize such action. The law requires, at a minimum, that the party contesting the election have the opportunity to attempt to persuade the court that the notice of contest is sufficient or, perhaps, seek to amend it. See also Wheatley v. State, 559 S.W.2d 526 (Mo. banc 1977); Hoppe v. St. Louis Public Service Co., 361 Mo. 402, 235 S.W.2d 347 (Banc 1950).

Contestee cites Davenport v. Teeters, 273 S.W.2d 506 (Mo.App.1954), for the proposition that the contestant must allege in the notice that there existed a reasonable chance that the result of the election would be different if the allegations were found correct. This much is true. However, Davenport also recognizes that “the first pleading is not necessarily final, and, provided there be a parent stock upon which the same can be ingrafted, amendments are permitted.” 273 S.W.2d at 512. It should also be noted that the court in Davenport permitted arguments of counsel prior to dismissal. 273 S.W.2d at 509.

For the foregoing reasons the judgment of dismissal is reversed and the cause remanded to the circuit court.

HENLEY, FINCH, DONNELLY, RENDLEN and SEILER, JJ., and McMIL-LIAN, Special Judge, concur.

MORGAN, C. J., not sitting.