text:
    Milton WALKER, Appellant, v. ASSOCIATES FINANCIAL SERVICES CORPORATION, Appellee.
    No. 5363.
    Court of Civil Appeals of Texas, Eastland.
    Oct. 4, 1979.
    Rehearing Denied Oct. 25, 1979.

      Michael Greenberg, Irving, for appellant.
    Larry Z. Sechrist, Dallas, for appellee.
   DICKENSON, Justice.

The controlling question is whether an out-of-state lender who loaned $7,500 to a Texas resident is subject to the Texas installment loan statutes and the Texas Deceptive Trade Practices-Consumer Protection Act where the transaction is conducted by mail and where the parties have agreed that the transaction is governed by the laws of the State in which the lender is licensed and regulated. We hold .that the contractual provision is valid and that, therefore, the transaction is governed by the law selected by the parties.

Milton Walker borrowed money by mail from Associates Financial Services Corporation, whose only office is located in South Bend, Indiana. The loan was made in Indiana on October 26, 1976. Walker made several payments on the note and then defaulted. The finance company attempted to collect the note by telephone calls and letters. Walker then sued the finance company, alleging violations under the Texas installment loan statutes, supra, seeking twice the amount of interest contracted for, plus attorney fees and interest. Walker also sued under the Texas Deceptive Trade Practices-Consumer Protection Act, supra, seeking three times the amount of interest contracted for, plus attorney fees and interest. Walker sought a class action as to the 569 Texas residents who had borrowed money from this finance company on the same type of note which he had signed. After waiving its special appearance under Tex.R.Civ.P. 120a, the finance company filed its' counterclaim against Walker for the balance due on the note plus attorney fees. Both parties moved for summary judgment. Walker's motion was denied, and summary judgment was granted to the finance company for the balance due on the note plus stipulated attorney fees. Walker appeals. We affirm.

Texas courts have long recognized that parties to a contract, under certain circumstances, may choose the law applicable to the transaction in which they are engaging. Dugan v. Lewis, 79 Tex. 246, 14 S.W. 1024, 1026 (1891); Securities Investment Company of St. Louis v. Finance Acceptance Corporation, 474 S.W.2d 261 (Tex.Civ.App.-Houston (1st Dist.) 1971, writ ref’d n. r., e.); Hi Fashion Wigs Profit Sharing Trust v. Hamilton Investment Trust, 579 S.W.2d 300 (Tex.Civ.App. — Eastland 1979, no writ). See also 16 Am.Jur.2d, Conflict of Laws §46.

This rule has been codified in Tejí.Bus. & Com.Code Ann. § 1.105(a) (Supp.1979) which provides that, subject to certain exceptions which do not apply to this case:

(W)hen a transaction bears, a reasonable relation to this state and also to another state or nation the parties/may agree that the law either of this state or of such other state or nation shall govern their rights and duties. .

Walker argues that any finance company which loans money to Texas residents is subject to the Texas laws regulating financial transactions. We disagree. Walker sought this loan from the Indiana finance company. The transaction was conducted by mail. Walker’s application was accepted in Indiana, and the loan was made in Indiana. Walker agreed by signing the note that the transaction would be governed by Indiana law. Walker makes no claim of fraud or subterfuge. We hold that this transaction is governed by the law of Indiana. Under Tex.R.Civ.P. 184a, the trial court took judicial notice of the law of Indiana and found that the transaction was lawful under Indiana law.

All of the points of error have been considered. They are overruled.

The judgment of the trial court is affirmed.

      . Tex.Rev.Civ.Stat.Ann. arts. 5069-4.01 to 4.04 (Vernon 1971). The 1979 amendments do not apply to this lawsuit.

      . Tex.Bus. & Com.Code Ann. § 17.41-17.63 (Supp.1979). The 1979 amendments do not apply to this lawsuit.


source: Caselaw Access Project

author: CLAYTON, Justice. STEPHENSON, Justice,

license: Public Domain

text:
    FOREMOST INSURANCE COMPANY and Robert H. Lloyd, Movants, v. Mabel SHEPARD et al., Respondents. FIRST HUNTINGTON NATIONAL BANK, Movant, v. Mabel SHEPARD et al., Respondents. Donald W. CONLEY, dba Donald W. Conley Insurance Agency, Movant, v. Mabel SHEPARD et al., Respondents. MOBILE HOMES ACCEPTANCE CORP. a/k/a Mobile Homes Acceptance Corp. of Ohio, Movant, v. Mabel SHEPARD et al., Respondents. Sherman ADAMS, Movant, v. COMMONWEALTH of Kentucky, Respondent.
    Supreme Court of Kentucky.
    Sept. 11, 1979.
    Rehearing Denied Nov. 20, 1979.

      Bert T. Combs, Charles R. Simons, Tar-rant Combs & Bullitt, Louisville, George B. Fleshman, Ashland, for Foremost Ins. Co. and Robert H. Lloyd.
    George B. Fleshman, Ashland, for First Huntington Nat. Bank.
    James E. Cooper, Gray, Woods & Cooper, Ashland, for Donald W. Conley, dba Donald W. Conley Ins. Agency and Mobile Homes Acceptance Corp. a/k/a Mobile Homes Acceptance Corp. of Ohio.
    James E. Adkins, II, Roger W. Hall, Adkins, Adkins & Hall, Catlettsburg, for Mabel Shepard.
    Woosley M. Caye, Louisville, for Movant Sherman Adams.
    Robert F. Stephens, Atty. Gen., Joseph R. Johnson, Asst. Atty. Gen., Frankfort, for respondent Commonwealth of Kentucky.
   CLAYTON, Justice.

The Court of Appeals dismissed the appeals of movants in these two actions for failure to designate a final judgment in the respective notices of appeal as required by CR 73.03. We granted discretionary review to evaluate our policy of strict compliance with CR 73.03 in light of Section 115 of the Kentucky Constitution, an issue common to both cases. We will first discuss the civil action from the Boyd Circuit Court and then proceed to the criminal case instituted in the Bullitt Circuit Court.

I.

Mabel Shepard filed suit in the Boyd Circuit Court alleging interference with contract against movants Foremost Insurance Company and Robert H. Lloyd, First Huntington National Bank, Donald W. Conley, and Mobile Homes Acceptance Corporation. On November 23, 1977, the trial court entered judgment against movants pursuant to a jury verdict in favor of Shepard. On February 21, 1978, movants filed notices of appeal from orders of the Boyd Circuit Court entered on November 23, 1977 (reciting the jury verdict rendered on that day) and January 20, 1978 (denying movants’ motions for judgment notwithstanding the verdict or a new trial). Neither of the orders designated was final or appealable. None of the notices of appeal mentioned the judgment of November 23, 1977. On August 3, 1978, the Court of Appeals granted Shepard’s motion to dismiss movants’ appeals for failure to designate an appealable judgment in the notices of appeal.

A notice of appeal must “designate the judgment or part thereof appealed from.” CR 73.03. In Hawks v. Wilbert, Ky., 355 S.W.2d 655 (1962), this court held that a notice of appeal which did not designate a final judgment was defective and dismissed the appeal. We have consistently enforced the policy of strict compliance with CR 73.03 announced in Hawks. Mov-ants contend that this policy is inconsistent with Section 115 of the Kentucky Constitution and must be relaxed to permit substantial compliance where the intent to appeal is clear and the rights of the parties are not prejudiced.

It is our opinion, however, that the right of appeal guaranteed by Section 115 may be conditioned upon strict adherence to orderly rules of procedure. “Substantive rights, even of constitutional magnitude, do not transcend procedural rules, because without such rules those rights would smother in chaos and could not survive.” Brown v. Commonwealth, Ky., 551 S.W.2d 557, 559 (1977). We therefore decline to retreat from our policy of strict compliance with rules of procedure regarding appeals. None of the notices of appeal filed by movants designates a final or ap-pealable judgment. The Court of Appeals properly dismissed the appeals.

Movants also argue that Shepard waived any objection to defects in the notices of appeal by failure to timely file her motion to dismiss, citing Bardill v. Birdwell Surveys, Inc., Ky., 310 S.W.2d 265 (1958). In Bardill the motion to dismiss was not filed until after all of the procedural steps necessary for submission of the case. The court held that the motion to dismiss was not seasonably made and that the delay constituted a waiver of the objection. In the case at bar, however, Shepard moved to dismiss before her briefs were filed. All of the procedural steps required for submission of the case had not been taken, and the motion to dismiss was therefore timely.

Finally, movants submit that the judgment of the Boyd Circuit Court entered on November 23, 1977, was not a final and appealable judgment. Inasmuch as this issue was not raised before the Court of Appeals, it is not properly before this court.

II.

The Bullitt Circuit Court entered judgment against Sherman Adams pursuant to a jury verdict finding him guilty of disorderly conduct. Movant filed notice of appeal from the jury verdict and from the trial court’s refusal to grant a directed verdict. The Commonwealth timely filed a motion to dismiss for failure to designate a final or appealable judgment in the notice of appeal. The Court of Appeals granted the motion and dismissed the appeal.

RCr 12.04(2) requires that the notice of appeal “designate the judgment from which the appeal is being taken.” The language of RCr 12.04(2) is based upon CR 73.03, and the same policy with respect to compliance applies to both rules. In light of our decision above to continue the policy announced in Hawks, we must reject movant’s argument that Section 115 of the Kentucky Constitution mandates less than strict compliance with RCr 12.04(2). The notice of appeal filed by movant did not designate a final judgment and the Court of Appeals properly dismissed the appeal.

The decision of the Court of Appeals dismissing the appeals is affirmed.

PALMORE, C. J., and AKER, CLAYTON, LUKOWSKY and STERNBERG, JJ., concur.

STEPHENSON, J., files a dissenting opinion in which REED, J., joins.

STEPHENSON, Justice,

dissenting.

I recognize that since 1962 this court has enforced a policy of strict compliance with CR 73.03 in accordance with Hawks. The opinion in Hawks represented a policy decision that rejected the alternative of substantial compliance in the absence of prejudice to the opposing party. In 1962 this court faced problems with an enormous and ever growing docket. The 1962 court apparently concluded that it could not afford the luxury of taking the time to decide substantial compliance and lack of prejudice on a case-by-case basis. This situation no longer exists, and it is my opinion that we should abandon the rigid policy of strict compliance, as announced in the majority opinion, in favor of a policy of substantial compliance where the defect does not mislead or prejudice the opposing party. This is in accordance with policy in the Federal courts. In Foman v. Davis, Executrix, 371 U.S. 178, 181-82, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962), presented with the same situation as here, the court said:

“ ‘The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.’ ”

See also Jones v. Chaney & James Construction Company, 399 F.2d 84 (1968), where the United States Court of Appeals for the Fifth Circuit said:

“This court has consistently said that an appeal will be entertained where an ‘overriding intent to appeal’ may be reasonably inferred from the text of the notice and the defect has not materially misled the appellee.”

It is apparent that the problem presented here is universal. The terms of CR 73.03 are clear, but on occasion otherwise careful practitioners fall into the trap of designating an interlocutory order in the notice of appeal rather than the final judgment. I would examine each case to determine if the opposing party was misled or prejudiced and if not permit “substantial compliance.”

This would be no more onerous on this court than making a determination of “excusable neglect,” in CR 6.02 and CR 60.02, on a case-by-case basis which is analogous to the problem here.

In none of the cases here is there any pretense that the respondents were misled or prejudiced at all by the defective notice of appeal. It is apparent that in each of the cases the movants had in mind appealing from the judgment.

I would reverse the decision of the Court of Appeals and reinstate the appeals.

REED, J., joins in this dissent.

      . Section 115 reads in relevant part: “In all cases, civil and criminal, there shall be allowed as a matter of right at least one appeal to another court . . .


author: RENDLEN, Judge.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Respondent, v. Mary MORGANSTEIN, et al., Exceptions of Ardeis H. Myers, et al., Exceptions of State Highway Commission of Missouri to Commissioners’ award to Ardeis H. Myers, Flora E. Myers, William G. Partin, Trustee, A. H. Myers, Jr., Trustee, Lizzie Belle Kroencke, Pleasant Hill Bank, Paul Metz, City Collector of Kansas City, Missouri, and George Lehr, Collector of Revenue of Jackson County, Missouri, Appellants.
    No. 60863.
    Supreme Court of Missouri, En Banc.
    Sept. 11, 1979.
    Rehearing Denied Nov. 14, 1979.

      Harry P. Thomson, Jr., Thomas F. Fisher, Kansas City, for appellants.
    Bruce A. Ring, Chief Counsel, Jefferson City, Earl H. Schrader, Jr., John B. Ewing, Jr., Mo. State Hwy. Comm., Kansas City, for respondent.
   RENDLEN, Judge.

A. H. Myers, Jr., as the personal representative of the estates of Ardeis Myers, Sr. and Flora E. Myers, and as trustee under a deed of trust, appeals from the judgment entered on jury-tried exceptions to a commissioners’ award in this highway condemnation case. Transferred here after opinion in the Western District, Court of Appeals, the following questions are presented: (1) Did the answers given by the court to questions submitted by the jury during its deliberations constitute prejudicially erroneous supplemental instructions? (2) In view of condemnor-plaintiff’s failure to timely move for substitution of the personal representative of a deceased condemnee who was a tenant by the entirety at the time of the commissioners’ award, was it proper to render a joint judgment against the con-demnees requiring repayment by them of amounts received under the commissioners’ award in excess of the subsequent jury verdict? (3) Is remand for determination of individual liability proper, when one of the parties is no longer before the court? Affirmed in part, the cause is remanded for further proceedings as to particular aspects of the cause hereinafter discussed.

The State Highway Commission petitioned to condemn certain land in which the principal interest was held by Ardeis Myers and Flora Myers as tenants by the entirety. Commissioners were appointed and on February 2,1971 they assessed damages for the taking in the amount of $387,000. Plaintiff filed its timely exceptions to the commissioners’ award, and the next day Ardeis and Flora Myers and A. H. Myers, Jr., Trustee, filed their “joint and separate exceptions.” The monies were paid into the registry of the court and pursuant to application by the Myers, the court on February 23 ordered the circuit clerk to issue a check for $387,-000 “payable to the order of Ardeis H. Myers, Flora E. Myers, William G. Partin, Trustee, A. H. Myers, Jr., Trustee, Lizzie Belle Kroencke, Pleasant Hill Bank, Paul Metz, City Collector of Kansas City, Missouri, and James P. Aylward, Collector of Revenue of Jackson County, Missouri.” Nothing further in this record reflects what happened to the check’s proceeds or the extent of any payees’ interest therein. The petition for condemnation simply named each as a defendant.

On May 13, 1975, plaintiff moved to substitute Flora Myers and A. H. Myers, Jr., co-executors of the estate of Ardeis Myers, in the stead of Ardeis Myers, who had died January 20,1974, some sixteen months earlier. Plaintiff filed no claim against the decedent’s estate but its motion to substitute, filed more than 10 months following the first publication of letters testamentary, was sustained and the proposed substitution of parties ordered by the court.

At the commencement of trial in May, 1976, counsel for the Myers moved orally to dismiss the exceptions of Flora E. Myers as an individual and of Flora E. Myers and A. H. Myers, Jr. as co-executors of Ardeis Myers’ estate. On that motion the court entered its order of dismissal.

The jury returned a verdict on the exceptions finding damages in the amount of $150,000, ($237,000 less than the commissioners’ award) whereupon the court ordered “that . . . defendants pay the plaintiff, the State Highway Commission of Missouri the sum of Two Hundred Thirty-seven Thousand and no/100 Dollars ($237,-000) plus interest . . . .”

Defendants Flora E. Myers, A. H. Myers, Jr., Trustee, and Flora Myers and A. H. Myers, Jr., as co-executors of the estate of Ardeis Myers, Sr., moved for a new trial or alternatively for modification of judgment asserting, among others, that the judgment was void “because there is no proration of the amount of excess on the amount of judgment entered against these defendants” and apportionment was not possible because no evidence appeared concerning division of the proceeds. Overruling these motions the court directed that the parties appear at a hearing to determine who received the proceeds of the commissioners’ award. This appeal followed.

I

We first consider appellant’s contention that the judge’s answer to certain questions posed in a note sent by the jury during its deliberations constituted reversible error. Resolution of this issue requires examination of pertinent portions of the record reflecting that occurrence.

THE COURT: What has now been marked as Court’s Exhibit 3 is a note from the jury which says as follows: ‘Is this suit for damages only. Have the people been paid for the land taken.’ Signed by the foreman.
The answer is no, isn’t it?
MR. SCHRADER [Counsel for plaintiff]: That requires a little fuller answer than that. This is a — I will say this is a suit for damages. The people have not been paid for the land.
MR. THOMSON [Counsel for defendant]: I think you’re going to have to say that the people have not been paid for the land taken. You see what I think they are getting at, Your Honor — and I am stating this so we all may consider the problem — I think what they may be asking is this for damages to the remainder only, and have they been paid for the right-of-way or the portion actually taken. That is the way I would interpret that.
THE COURT: I don’t think that is any question.
MR. THOMSON: So then I would have to say they have not been paid, that I would suggest, with Mr. Schrader’s agreement, that the Court say they have not been paid, and that this is a suit for damages.
MR. CASLAYKA [Counsel for defendants]: And for the land taken.
MR. THOMSON: And for the land.
THE COURT: Why do we have to get complicated? Why can’t we answer the question no? It says have the people been paid for the land taken. Isn’t the answer no?
MR. SCHRADER: Right.
MR. THOMSON: Right.
THE COURT: I don’t know what that first question means, ‘Is this lawsuit for damages only?’
MR. SCHRADER: That’s what’s causing me concern.
THE COURT: Why don’t I answer this way, I do not understand your first question. If you are uncertain, read the instructions again. With regard to the second question the answer is no.
MR. SCHRADER: That is fine.
THE COURT: Is that all right?
MR. THOMSON: Yes, Your Honor.
******
THE COURT: The measure of damages is for land taken and I’ve written at the bottom of Court’s Exhibit No. 3 as follows: ‘I do not understand the first question. If you are uncertain, read the instructions again.
With regard to the second question, the answer is — no.’ Signed by me.
Any further suggestions?
MR. THOMSON: No.

Defendants contend the court’s answer to the jury’s question constituted an erroneous modification of the court’s instruction on damages, MAI 9.02, in violation of Rule 70.02(b). That prejudice resulted because “the Court was in effect telling the jury that the defendants had not been paid for the land, and, thus, this was the total measure of damages.” We do not believe the import of the court’s answer was as defendants claim. The court in its response to the jury’s first inquiry merely referred them to the instructions. While a trial court risks reversal to further instruct the jury outside MAI, the definition of damages in MAI 9.02, previously submitted as instruction No. 2, answered counsel’s announced concern that the jury would consider damages only to the remainder and similarly defendants present contention that the jury considered damages only for the land taken. As to the jury’s second question, counsel for appellant not only acceded to the court’s one word answer “No,” but suggested that the court should answer “that the people have not been paid for the land taken.” The error, if any, in giving answer to the second question was invited by appellant who may not now be heard to complain. Myers v. Buchanan, 333 S.W.2d 18, 23 (Mo. banc 1960). Fletcher v. Cummings, 532 S.W.2d 890, 891 (Mo.App.1976).

II

We next consider appellant’s claim that the trial court’s failure to determine the several liability of those to whom proceeds were paid jointly, rendered the judgment void.

Defendants rely heavily on State ex rel. State Highway Commission v. Eilers, 445 S.W.2d 374, 377 (Mo.1969), wherein the Court described the apportionment scheme for distribution of condemnation awards under § 523.053, RSMo 1969.

In Eilers, as here, the trial court entered an in personam judgment requiring that defendants repay condemnor the amount by which the jury had reduced the commissioners’ award. The court made no apportionment of several liability. However, as pointed out at 445 S.W.2d at 376, there was “no finding or recital in the judgment that this money or any portion of it was ever disbursed by the Circuit Clerk, nor [was] there any separate order or entry in the transcript which so indicates.” Thus it was held that the action continued to be one in rem and the trial court’s in personam judgment against the defendants was void. The Court discussed apportionment under § 523.053 as an appropriate procedure on remand, not as the ratio decidendi for its order.

Appellant also refers to State ex rel. State Highway Commission v. Thelnor, Inc., 485 S.W.2d 443 (Mo.App.1972), appeal after remand, 543 S.W.2d 229 (Mo.App.1976). There the owner of property encumbered by a deed of trust obtained a court order releasing the commissioners’ award to him alone and the money was so paid. 543 S.W.2d at 230. As the appellate court noted, this procedure represented an “ ‘irregularity’ under the law in effect on February 5, 1965,” the date of the court’s order. After the jury awarded a lesser amount, the trial court entered a joint and several judgment against the owner and the holder of the deed of trust for the amount to be returned to the Commission. In the first appeal, the Appellate Court reversed and remanded because no separate apportionment of the amount to be returned had been determined by the trial court. 485 S.W.2d at 446. The Court of Appeals apparently relied on § 523.053, but that statute was not in effect at the time of the trial court’s judgment and could not therefore have produced reversal. The opinion also cites Eilers, but the Eilers ruling was based not on the lack of apportionment; instead as discussed above the appellate court reversed the trial court’s judgment because the order constituted an in personam judgment when the record disclosed the action was one in rem.

Thus while neither Eilers nor Thelnor provide authority for ruling that the judgment of the trial court in the case at bar was void, we believe remand is necessary to determine the individual liability of the separate defendants for the excess award, and this is so whether or not § 523.053 controls. The obligation to repay the Commission all amounts obtained above the jury award springs from basic principles of equity and fairness which dictate that defendants simply have no right to more than the jury found was due for the property taken. The situation resembles that in which an already-satisfied judgment is reversed on appeal. The successful appellant has the right to restitution of money lost by reason of the erroneous or void judgment. DeMayo v. Lyons, 360 Mo. 512, 228 S.W.2d 691, 692 (1950). “The proceeding, after the reversal of the judgment, to make restitution, whether by separate suit or motion in the case, is governed by broad equitable considerations. It is a question ex aequo et bono, as in suits for money or property had and received.” Hurst Automatic Switch & Signal Co. v. Trust Co. of St. Louis Co., 291 Mo. 54, 236 S.W. 58, 62 (1921). Of course, equity in such cases holds a defendant liable to repay only that which he may have received of the proceeds, whether directly or beneficially. White v. McCoy Land Co., 101 S.W.2d 763, 765 (Mo.App.1936), aff’d. sub nom. White v. Scarritt, 341 Mo. 1004, 111 S.W.2d 18 (1937). See also 58 C.J.S. Money Received § 23 (1948). But when, as in the case sub judice, the commissioners’ award has been paid to joint parties, it is the burden of each to prove the lesser amount for which he may be liable. The condemnor has no responsibility for the apportionment of a damage award, State ex rel. State Highway Commission v. Conrad, 310 S.W.2d 871, 877 (Mo.1958), nor is it required to trace the distribution of the proceeds to the parties. Application of these principles requires vacation of the trial court’s judgment with directions that it enter an order allowing appellant to move within such reasonable time as the court may direct for a determination of the liability of each of the joint parties or their estates (except the Estate of Ardeis Myers, Sr.) for repayment of the excess of the commissioners’ award. In connection with this it is appropriate to resolve the peculiar problems arising from the Myers’ ownership of the land as tenants by the entirety.

The Court of Appeals, writing when Flora E. Myers was still a party to this appeal, ruled that because the proceeds of the commissioners’ award were held by the entireties, Flora as survivor remained liable for the amount of the jury’s reduction of the commissioners’ award. This result would obtain however only if the proceeds were not dissipated or changed into non-entirety property at the time of Ardeis Myers’ death in 1974. “Personal estates held by the entirety can be changed to other types of estates by consent, agreement or acquiescence, . . .” Coffey v. Coffey, 485 S.W.2d 167, 170 (Mo.App.1972). “The courts have had some difficulty with withdrawals from entirety accounts. . [T]he use of entirety funds by one of the owners becomes a matter of intention, and this intention must often be determined from the facts and circumstances which imply that intention. The husband and wife can by consent, agreement, or acquiescence change the character of entirety property. . Certainly the acquiescence of one tenant by the entirety to the purchase (from the joint funds) of property taken in the name of the other would destroy the entirety interest (and the resulting trust) from following the proceeds. Otherwise the character of entirety interest would extend on ad infinitum.” Cooper v. Freer, 385 S.W.2d 340, 345 (Mo.App.1964) (citations omitted). “[Wjhenever a portion of an entirety account is withdrawn for the personal use of one of the parties by the consent of the other, there is a change in the character of the ownership as to that part so withdrawn.” Ray v. Ray, 336 S.W.2d 731, 734 (Mo.App.1960). Whether a tenancy by the entirety follows every exchange of the joint proceeds depends primarily on the intent of the parties to the tenancy. Ambruster v. Ambruster, 326 Mo. 51, 31 S.W.2d 28, 37 (Mo.1930); Harrellson v. Barks, 326 S.W.2d 351, 360 (Mo.App.1959). The record here tells nothing of the flow or form of the proceeds after the check for the commissioners’ award was delivered and cashed nor of the character of ownership on the date of Ardeis Myers’ death. Accordingly, the parties must be afforded an opportunity to explain what happened to those monies and whether a tenancy by the entireties existed in any of the excess proceeds on that date. Only to the extent that funds were held by the entireties at the time of Ardeis Myers’ death will the estate of Plora E. Myers have succeeded to liability for the amount jointly received from the State Highway Commission. This, however, would be in addition to the amount her estate might be liable for proceeds taken or held by her outside the entirety estate at the time of her husband’s death.

Ill

Finally, we examine appellant’s argument that the untimely substitution of the co-executors for Ardeis Myers in 1975 was invalid and that this deficiency cannot now be rectified. Ardeis Myers, the argument runs, was an indispensable party without whom (or absent substitution) final judgment could not have been entered and accordingly the judgment “against these defendants” was void and further proceedings may not now be had in the cause. We disagree.

Pertinent to this issue are the following:

February 23,1971 - The court ordered disbursement of the commissioners’ award by issuance of a check to Ardeis and Flora Myers, A. H. Myers, Jr., and others.
January 20, 1974 - Ardeis Myers died.
During the week of July 10,1974 — First publication of notice of letters testamentary in Ardeis Myers’ estate.
May 13,1975 - Plaintiff moved to require the substitution of the co-executors of Ardeis Myers’ estate in the place and stead of defendant Ardeis Myers.
May 13,1975 - The trial court without notice or hearing sustained the motion for substitution.
May 24,1976 — Trial on the exceptions of the parties began.

Section 507.100.1(3), RSMo 1969, provides in relevant part, “If the death [of a party] occurs prior to final judgment and substitution or motion therefor is not made . . . within nine months after the first published notice of letters testamentary or of administration, the action shall be dismissed as to the deceased party.” (Emphasis ours.) It was stipulated by counsel for the Commission that the first publication of letters of administration of the Ardeis Myers estate occurred within one week following July 10, 1974. The motion and order to substitute parties for Ardeis Myers in the condemnation action did not come until ten months later. Clearly the statutory period had run and it was error to permit the substitution.

While it is well established that lack of personal jurisdiction can be waived by the entry of a general appearance, our examination of the record reveals no general appearance was made. At the opening of the trial on the exceptions, counsel for defendants first dismissed the exceptions of Flora E. Myers. Then counsel argued that the exceptions of Ardeis Myers were no longer before the court and an extended colloquy resulted, which we quote at length below.

It is clear from the record that defense counsel attempted to have the exceptions of Ardeis Myers and those of the plaintiff as to defendant Ardeis Myers dismissed contending there had been an erroneous substitution in the case and preserved his objection when the trial court insisted that the co-executors were before the court. It was only after the trial court declared the validity of the questioned substitution that counsel for the defense dismissed the exceptions brought by Ardeis Myers. Such cannot be said to have constituted an admission that the court had personal jurisdiction nor a waiver of the objection made. We find the court did not have jurisdiction of the personal representatives of the estate of Ardeis Myers when the exceptions were tried.

While the court had no jurisdiction as to the Estate of Ardeis Myers, it does not follow that the court was powerless to render judgment against the remaining parties. Appellant argues in the most conclu-sory terms that the estate of Myers is a “necessary” party to the action without citing Rule 52.04, “Joinder of Persons Needed for Just Adjudication,” or attempting to apply its principles. We have previously concluded that each defendant is liable for the amount of the excess award he actually or beneficially received, and no more. Thus we cannot perceive how “complete relief cannot be accorded among those already parties,” Rule 52.04(a)(1), or how those already parties might be subject to double liability or inconsistent obligations as addressed by Rule 52.04(a)(2)(ii). In view of the limitations period for claims against the estate contained in § 473.360.1, RSMo 1978, which this Court has held to be jurisdictional, State ex rel. Whitaker v. Hall, 358 S.W.2d 845 (Mo. banc 1962), it does not appear how the interests of the estate could be harmed by proceeding. See Rule 52.-04(a)(2)(i). Consequently, there exists no bar to a remand of this case for further proceedings as to those defendants other than the estate of A. H. Myers, Sr.

When a condemnation award has been distributed before exceptions are tried, but the defendants have not utilized the procedure allowed in § 523.053, it would seem better practice for the court to determine in advance the percentage of any increase or decrease each defendant might have in the outcome. However, we do not find it necessary to require a retrial of the exceptions in this case despite the absence of such a percentage determination, because the total damages have been established by the verdict which has gone unchallenged as to amount on this appeal. Further the remaining defendants are burdened with proving the limit of their liability for repayment.

Appellant has urged that an Indiana decision, close on its facts to the case at bar, requires a result different from that we have reached. In Whitlock v. Public Service Co. of Indiana, Inc., 239 Ind. 680, 159 N.E.2d 280 (1959), appellants husband and wife owned real estate as tenants by the entirety over which condemnor took an easement. The appraisers awarded damages of $5,797.50 deposited by condemnor with the court, and appellants withdrew that sum as permitted by statute. Prior to trial on the exceptions the wife died. No personal representative was substituted for her in the pending action. The jury found damages only in the amount of $2,000 and on that verdict the trial court entered judgment against the surviving husband for the “sum of $3,617.50,” the amount of the excessive withdrawals by the husband and wife.

The Indiana Court reversing and remanding noted there was no evidence “as to how the money was divided between the husband and wife after it was withdrawn from the clerk’s office.” 159 N.E.2d at 284. Stating further at 285:

The Indiana law impresses the proceeds from property held by the entireties with the rights of survivorship, the same as the original property from which it came. It, however, does not necessarily follow that if one of the spouses dies before the judgment reducing the award of the appraisers that the surviving spouse is liable for the proceeds previously taken by the other spouse.
******
[I]f the proceeds had been dissipated or disposed of before the wife died, then the husband took no part of such proceeds by reason of her death. There can be no tenancy by the entireties in proceeds which are no longer in existence. (Emphasis in original.)

To this point our views coincide with those of the Indiana court. However, rather than remanding for an evidentiary hearing on the question of the joint or several liability of the various defendants for the excess as we now do, that court held that the condemnor should have substituted the personal representative for the deceased wife. Id. at 286. That the personal representative was entitled to participate in the trial, and notwithstanding the Indiana one year statutory limitation on substitution of parties, on remand the substitution could apparently be made and a new trial on all issues be had. Id. In the case before us the time for substitution had passed and there can be no claim against the estate of Ardeis Myers, Sr., for the excess. However, as previously noted, the obligation to repay is several and the cause may proceed as to those defendants other than the estate of Ardeis Myers, but only on the issue of their liability for the excess.

The judgment as to the amount of damages awarded for the taking is affirmed; however, the cause is ordered dismissed as to the estate of Ardeis Myers, Sr. That portion of the judgment ordering the original defendants to pay the State Highway Commission $237,000 plus interest, and granting the Commission execution therefor, is vacated and the cause remanded for further proceedings consistent with the views expressed in this opinion.

BARDGETT, C. J., DONNELLY, SEILER, MORGAN, JJ., and FINCH, Senior Judge, concur.

HIGGINS and WELLIVER, JJ., not participating because not members of the Court when the cause was submitted.

      . When the appeal was lodged Ardeis Myers, an original defendant, had died and Flora E. Myers and A. H. Myers, Jr., appealed as co-executors of his estate. Flora E. Myers also appealed as an individual. After submission of the cause in this Court, counsel for appellants filed suggestions of death for Flora E. Myers and moved to substitute A. H. Myers, Jr., executor of her estate. The motion was sustained; thus A. H. Myers, Jr., appears before this Court in three capacities.

      . While it is not specifically shown whether the exceptions of A. H. Myers, Jr., as trustee were dismissed, the parties apparently considered such had been done and proceeded as though that was the case.

      . Section 523.053 was enacted and became effective late in 1965. Laws 1965, pp. 660-661.

      . It can be argued that § 523.053 does not provide the exclusive means of withdrawing commissioners’ awards from the registry of court, for the statutory language states a defendant “may” file a motion for distribution pursuant to its provisions. On the other hand, defendants did not file a motion for distribution under § 523.053, which would seem to be the prerequisite for their invoking subsection 3 on apportionment of liability for restitution. However, in view of our disposition of the case, we need not pass on the applicability of § 523.053 to the facts before us.

      . If the proceeds were converted to non-entirety property and taken by Flora Myers as her own prior to the death of Ardeis, it goes without saying that she may be held responsible for the proportional amount of the award’s reduction.

      . Neither appellant nor respondent have addressed the effect of our Rule 52.13(a) on this substitution of parties, nor shall we. Neither is it necessary to consider appellant’s argument that § 473.360 of the probate code forbids judgment against the co-executors in view of our determination that they were not properly in the case.

      . The colloquy between counsel for the parties and the court occurring prior to presentation of evidence was as follows:
      MR. THOMSON [counsel for defendants]: Now, if the Court please, I suggest further that the exceptions of Ardeis H. Myers, defendant, no longer is [sic] pending.

        The letters of admission were issued on July 10, 1974, and the first publication of letters occurred within that week.
      Will you stipulate to that, Mr. Schrader?
      MR. SCHRADER [counsel for plaintiff]: You do not have to — you are representing to me those are the dates. I have no personal knowledge. I will so stipulate.
      MR. THOMSON: Those are the dates. Now, if the Court please, I will ask Mr. Schrader to stipulate that no claim or notice of suit has been filed in the period as required by statute within the claim time of Ardeis H. Myers, Estate No. 120287.
      MR. SCHRADER: I will not so stipulate. It is our position that there is no such requirement. You are stating as required by law. There is no such requirement.
      MR. THOMSON: Let’s don’t argue about the law, Mr. Schrader. I am simply asking you to stipulate, in fact, what you know, the State made no claim in the estate of Mr. Myers.
      MR. SCHRADER: No, we did not make — I will so stipulate.
      THE COURT: Mr. Thomson, is it your claim, in order to get back any excess that they claimed that they paid in that they would have to file a claim?
      MR. THOMSON: Right, sir. They would have to perfect a notice of claim against the estate within the claim period, because after the date of taking, any claim for refund is personalty.
      THE COURT: That will not be in issue before the jury?
      MR. THOMSON: No, sir.
      THE COURT: It will only come up if, in fact, the jury allowed less in this case than the Commissioners awarded?
      MR. THOMSON: Yes, sir.
      THE COURT: Then it would be a legal matter?
      MR. THOMSON: Right. I think all the necessary facts are now stipulated, therefore, we submit to the Court — we ask, at this time, that the Court dismiss both the exceptions of Missouri State Highway Department, plaintiff, and the exceptions of Ardeis H. Myers, as a legal matter, Your Honor.
      THE COURT: Do you represent the executor, executrix, co-executor and co-executrix, Flora Myers and Ardeis H. Myers?
      MR. THOMSON: Both are in court. I do represent them and represent the estate.
      THE COURT: Are they executor and executrix parties?
      MR. THOMSON: No.
      MR. SCHRADER: Yes, they are. They were substituted and ordered by this court order as substituted parties, and Mrs. Myers was also a named party.
      MR. THOMSON: Not in this here capacity as an executrix.
      MR. SCHRADER: No. She has been substituted.
      THE COURT: Everybody be quiet for just a minute, please.
      Yes, I have made an order, which is dated May the 13th, 1975, which the last paragraph of the order says, ‘It is ordered that Flora Myers and Ardeis H. Myers, Jr., be substituted as party defendants in this case in the place and stead of Ardeis H. Myers, deceased.’
      Therefore, since there has been an order substituting them for him, there is no need to dismiss his exceptions, so what we have then are exceptions in the name of and under the control of Flora Myers and Ardeis H. Myers as executor and executrix of the estate of Ardeis H. Myers, deceased. Do you, on behalf of those two people, Mr. Thomson, wish to dismiss their exceptions?
      MR. THOMSON: I dismiss their exceptions, and I further, Your Honor, point out to the Court — and move that the claim of any claimed exception of the estate against them be dismissed, because I respectfully point out to the Court that order was entered after the running of any time period in the claim substitute after the letters of administration were issued and published. The letters of administration, Your Honor, were issued July 10, 1974, and as I recall, the order of substitution was signed December ’75.
      THE COURT: No. May 13.
      MR. THOMSON: May 13,1 beg your pardon.
      THE COURT: So what I would like to resolve now, are you, as attorney for executor— how do you designate them, co-executor and co-executrix?
      MR. THOMSON: Yes, Your Honor.
      THE COURT: —and of the estate of Mr. Myers, are you requesting their exceptions be dismissed?
      MR. THOMSON: Yes, Your Honor.
      THE COURT: The record will show that the exceptions of the co-executrix and co-executor of the estate of Ardeis H. Myers, deceased, are dismissed at their request.
      Anything else?
      MR. THOMSON: Your Honor, I want to make the record absolutely clear.that we are not waiving our objection to the claim of the State, plaintiff, by proceeding at this time. We are reserving all proper objections as to their claim for any refund that might exist.

      . The difference between the appraisers’ award and the verdict was $3,797.50 as contrasted with the $3,617.50 recited in the trial court’s judgment. No explanation for this difference appears in the reported decision.


author: JAMES A. FINCH, Jr., Senior Judge.

text:
    Glenn H. BINGER et al., Respondents and Cross-Appellants, v. CITY OF INDEPENDENCE, Missouri, Appellant and Cross-Appellee
    No. 60762.
    Supreme Court of Missouri, En Banc.
    Sept. 11, 1979.
    Rehearing Denied Oct. 19, 1979.

      Robert H. Freilich, University of Mo., School of Administration, Kansas City, James S. Cottingham, Thomas D. Cochran, Richard G. Carlisle, Independence, for appellant and cross-appellee.
    W. Raleigh Gough, Rufus B. Burrus, Independence, for respondents and cross-appellants.
   JAMES A. FINCH, Jr., Senior Judge.

This is an appeal in a declaratory judgment suit wherein plaintiffs, as representatives of a class of objecting property owners, sought a declaration that annexations by the City of Independence of five contiguous areas in which plaintiffs reside were unreasonable and therefore void. The trial court held that plaintiffs were entitled to maintain the class action, that all of the annexations were unreasonable and voidable and that they should be set aside as requested by plaintiffs. On appeal the Missouri Court of Appeals, Western District, reversed, holding that the annexations were valid. However, on application of plaintiffs, it ordered the case transferred to this court “because of the general interest and importance of this case in that the opinion herein of this court may extend or broaden the present scope of review and quantum of proof necessary in annexation cases.” We now decide the case as though here on direct appeal. Mo.Const., Art. V, § 10. We reverse.

Independence is a constitutional charter city. Such cities annex territory by amending their city charters to incorporate into the city the area to be annexed. City of Hannibal v. Winchester, 391 S.W.2d 279 (Mo. banc 1965).

In 1958, Independence adopted a “holding ordinance” to indicate that it was contemplating annexation of a large area to the east and northeast. The city annexed 13.4 square miles thereof in 1960 and 16 square miles in 1963, plus two very small tracts in 1961 and 1962. These extended the eastern boundary of Independence to the Little Blue River and increased the area of the city to 47.8 square miles.

In 1968 the city completed and published a comprehensive plan for future development which included planning for areas proposed for annexation. Some revisions were made subsequently and in the spring of 1972 the city adopted ordinances which provided for amending the city charter to annex five territories containing 29.7 square miles of land. These territories were a part of the area designated in the “holding ordinance” of 1958 and included in the comprehensive plan.

The ordinances called for a vote thereon by the voters of Independence in a special election to be held on December 5,1972. In that election the vote favored annexation of all five territories. Territory No. 3 was to be annexed effective December 31, 1973, Territories 1 and 2 effective December 31, 1974, and Territories 4 and 5 effective December 31, 1975.

Thereafter, the procedures whereby annexation was accomplished were attacked in a proceeding in the nature of quo war-ranto which sought to oust Independence from exercising jurisdiction over the five territories annexed. The trial court ordered ouster but on appeal this court reversed, holding (1) that annexation by charter amendment was the proper and exclusive method of annexation by a constitutional charter city, (2) that proposals to approve such charter amendments could be voted on at a special election and (3) that simultaneous elections in the territories to be annexed, required by § 71.870, were not necessary because on December 5, 1972, the date of the special election, Jackson County had not yet become a first class chartered county. State at inf. of Martin v. City of Independence, 518 S.W.2d 63 (Mo.1974). Thereupon plaintiffs filed this action attacking the reasonableness of and necessity for the annexations.

Prior to 1953 the courts of Missouri reviewed the validity of annexation proceedings only after they were consummated. This occurred when and if suits attacking such annexations were filed. Usually this was by suits in equity to enjoin enforcement. Sometimes it was by quo warranto and at least once it was by a suit for declaratory judgment. As this court said in City of St. Joseph v. Hankinson, 312 S.W.2d 4, 8 (Mo.1958), “In so doing, it has been the universal rule that the court does not, in any sense, substitute its discretion or judgment as to the advisability or propriety of the annexation for that of the legislative body of the city, and that it does not review the legislative discretion; its consideration of ‘reasonableness’ is confined to a determination of whether there exists a sufficient showing of reasonableness to make that question, at the least, a fairly debatable one; if there is such, then the discretion of the legislative body is conclusive. State ex inf. Taylor ex rel. Kansas City v. North Kansas City, Banc, 360 Mo. 374, 228 S.W.2d 762; Faris v. City of Caruthersville, Mo.App., 301 S.W.2d 63; State ex inf. Mallet ex rel. Womack v. City of Joplin, 332 Mo. 1193, 62 S.W.2d 393; Dressel v. City of Crestwood, Mo.App., 257 S.W.2d 236. The function of our courts, historically, has been merely to determine, in the light of these principles, whether the exercise of the legislative powers has been arbitrary and clearly unreasonable. (See the cases just cited.) Only to this extent do our courts consider the reasonableness of an annexation.”

In 1953 legislation known as the Sawyers Act was enacted. Laws 1953, p. 309, § 1. It now is identified as § 71.015. It provides:

“Whenever the governing body of any city has adopted a resolution to annex any unincorporated area of land, such city shall, before proceeding as otherwise authorized by law or charter for annexation of unincorporated areas, file an action in the circuit court of the county in which such unincorporated area is situated, under the provisions of chapter 527 RSMo, praying for a declaratory judgment authorizing such annexation. The petition in such action shall state facts showing:
1. The area to be annexed;
2. That such annexation is reasonable and necessary to the proper development of said city; and
3. The ability of said city to furnish normal municipal services of said city to said unincorporated area within a reasonable time after said annexation is to become effective. Such action shall be a class action against the inhabitants of such unincorporated area under the provisions of section 507.070, RSMo.”

This section was construed in City of St. Joseph v. Hankinson, supra, at p. 9 as follows:

“We construe § 71.015 as merely giving to the courts, in advance of a consummated annexation, the same judicial power and authority to test the reasonableness and necessity for an annexation which they have always exercised after its completion; that is to say, to decide whether the legislative declaration by the city is so palpably unreasonable and unnecessary as to be an arbitrary and oppressive exercise of its legislative power.”

In McConnell v. City of Kansas City, 282 S.W.2d 518 (Mo.1955), plaintiff attacked an annexation by Kansas City on the basis that it had not obtained the declaratory judgment mandated by § 71.015. The court held that the Sawyers Act, insofar as it sought to impose the procedure therein specified on a constitutional charter city as a condition precedent to proceeding with annexation, was unconstitutional. This ruling was reaffirmed in Hannibal v. Winchester, 391 S.W.2d 279 (Mo. banc 1965) and in St. Louis County v. City of Florissant, 406 S.W.2d 281 (Mo. banc 1966). Plaintiffs do not now contend otherwise but they do assert that the Sawyers Act, in addition to prescribing a procedure to follow in the annexation process, had the effect of impliedly repealing the previously existing discretion of city legislative bodies to resolve the reasonableness of and necessity for annexation and that this portion of the Act is applicable to constitutional charter cities. They further contend that since cities which are required by the Sawyers Act to file a suit to determine reasonableness and necessity have the burden of proof to establish that annexation is reasonable and necessary, a similar burden must be placed on constitutional charter cities, even though the action attacking reasonableness is filed by property owners, because to hold otherwise would result in a denial of equal protection as between constitutional charter and other cities.

We reject both of these contentions. With reference to the argument that the Sawyers Act had the effect of limiting the legislative discretion of all cities in the annexation process, it is true that this court in McDonnell Aircraft Corp. v. City of Berkeley, 367 S.W.2d 498 (Mo.1963) held that even though constitutional charter cities are not required to follow the procedure specified in § 71.015, said section does set standards for all cities in that it requires that such annexation must be reasonable and necessary. However, that does not mean that enactment of § 71.015 had the effect of changing the nature of judicial review of such proceedings from what it had been theretofore. In fact, the decisions of this court hold to the contrary. As previously noted, the court in City of St. Joseph v. Hankinson, supra, held that the Sawyers Act merely provided for the courts in advance of the completion of annexation, to exercise “the same judicial power and authority to test the reasonableness and necessity for an annexation which they have always exercised after its completion;” 312 S.W.2d at 9. Case law already required that annexation be reasonable and necessary.

This conclusion that a change in the nature of judicial review of annexation was not produced by enactment of the Sawyers Act necessarily follows from what the court said later in City of Olivette v. Graeler, 369 S.W.2d 85, 96 (Mo.1963):

“In our view plaintiff has not met its burden of proving the elements required by the Sawyers Act. In so ruling we do not usurp the legislative function, but merely hold that there was no substantial evidence to show that the proposed annexation was reasonable. The so-called ‘debatable’ rule merely means that if there is substantial evidence both ways, then the legislative conclusion is determinative.”

In Graeler the court applied the rule, articulated in Hankinson, that the court will defer to the legislative determination of reasonableness and necessity if the evidence shows the question was “fairly debatable.” The court concluded that the evidence in that case did not so show and therefore held the annexation invalid.

In the later case of Young v. Mayor, Council and Citizens of the City of Liberty, 581 S.W.2d 732, 737 (Mo. banc 1976), the court again clearly stated that the test of reasonableness and necessity under § 71.015 was the same question resolved in cases before the Sawyers Act, saying:

“The purpose and effect of this statute has been stated in the numerous cases which have arisen since its passage. It does require a favorable judgment as a condition precedent to a municipal annexation. The essential consideration for the court is the reasonableness of the proposed action, the same judicial question which was involved in annexation cases prior to the Sawyers Act, except that in those cases, the question arose subsequent to the annexation, not before. * * * Annexation by a municipality remains a legislative prerogative. The Sawyers Act affects merely the procedure by which the limited authority of the judiciary in the process is invoked. City of St. Joseph v. Hankinson, supra.

Thus the effect of the Sawyers Act was procedural rather than substantive. Whereas the practice had been for annexation to be completed after which reasonableness and necessity were judicially reviewed if a suit calling for such review was instituted, the Sawyers Act required such review during the process of annexation and before its completion. This had the obvious advantage of resolving such questions as a condition to proceeding with annexation instead of necessitating that annexation be undone where shown thereafter to be unreasonable. It did not change the substantive requirements.

Plaintiffs’ second contention is that in order to avoid a denial of equal protection the burden of proof in this action must be on Independence just as it is on cities bringing Sawyers Act cases. This argument is predicated on the assumption that in suits to determine the reasonableness and necessity of legislative action to annex, the burden of proof, referred to in § 71.015 and in previous annexation cases, has reference to a burden of persuasion that the preponderance of the evidence establishes reasonableness and necessity or the absence thereof. Actually, that is not what the term burden of proof means in these cases. This necessarily is true because the outcome of these cases does not depend on whether a city establishes by a preponderance of the evidence that annexation is reasonable and necessary or that citizens establish by a preponderance of the evidence that such annexance is unreasonable and unnecessary. There is not in these cases a burden of persuasion by a preponderance of evidence. Instead, the test is whether the evidence shows that the question of reasonableness and necessity of the annexation was fairly debatable. If it does, the legislative decision must stand. Therefore, when the suits to test reasonableness and necessity (both the Sawyers Act and the pre-Sawyers Act cases) speak of the burden of proof, they necessarily refer to a burden of proceeding with the evidence. The earlier cases have not analyzed the term burden of proof and have not articulated the fact that it really means the burden of proceeding with the evidence, but, as pointed out above, this necessarily is so and it henceforth should be so interpreted.

The ultimate test, regardless of which party brings the suit and has the burden of proceeding with the evidence, is whether the reasonableness and necessity of proposed annexation was fairly debatable. Under such circumstances there is no denial of equal protection in requiring citizens to institute suit attacking annexation by Constitutional charter cities and to proceed with the evidence therein. This issue is resolved against plaintiffs.

Plaintiffs next assert that in deciding this appeal our review is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) and that under said decision we must affirm the decision of the trial court. We disagree. Murphy v. Carron governs appeals in court tried cases wherein the trial court has acted as the trier of fact. It does not apply when the trial court has reviewed the propriety of a decision by an administrative or by a legislative body. In the latter instance we examine the record to determine whether there is substantial evidence to support the legislative decision. If we determine therefrom as a matter of law that there is no substantial evidence to show that the annexation was reasonable and necessary, as the court did in City of Olivette v. Graeler, supra, then the annexation must be set aside. However, if the court concludes from the record that there is substantial evidence that the annexation was reasonable and necessary, then the issue was at least debatable and the legislative decision must be permitted to stand.

We conclude and hold that there is substantial evidence that the decision of the Independence City Council to annex was reasonable and necessary. While there also was much evidence to the contrary, the issue was fairly debatable which means that we must sustain the legislative decision made by the City of Independence.

This was a lengthy trial. Both sides called many witnesses and introduced a large number of exhibits. There are more than 1300 pages of testimony. It would serve no useful purpose to detail all of that evidence. It will suffice to refer briefly to some of the evidence which supports the decision made by the city council and makes the issues of reasonableness and necessity reasonably debatable.

In 1940 the population of Independence was 16,066. Between that date and 1970 the city grew dramatically. In 1950 the population was 36,963, in 1960 it was 62,328 and in 1970 it was 111,662. There was evidence which indicated substantial future growth in population. The 1968 Comprehensive Plan for the City of Independence, introduced by plaintiffs as their Exhibit 17, disclosed that a 1966 study by Midwest Research Institute projected a population of 220,000 for Independence by 1990. Winford Winholtz, a city planning consultant called as a witness by plaintiffs, expected comparable growth. There also was evidence of some residential development in the area annexed prior to the vote thereon. Mayor King, and others, told of present and planned development of various areas. The council may consider the future as well as present needs of the city. City of St. Joseph v. Hankinson, supra, 312 S.W.2d at 18.

There also was testimony of substantial commercial development. For example, Mayor King testified that there had been more such development in Independence during the preceding five years than there had been in the entire twenty-five years before that. One such project was the Independence Center which was described as the second largest shopping center of its type in the nation. That center, located in Independence was only a mile from some of the territory annexed as a result of the election in December, 1972. There was evidence of other planned commercial development in that area.

Mayor King testified concerning the development of warehousing, some in the city as it existed before the 1972 annexation vote and some planned in annexed territory. Reference was made to a 400,000 square foot warehouse occupied by Hunt, Wesson Foods. A considerable warehousing development was being established in caves created by earlier underground mining of limestone. Those areas were being prepared and utilized for extensive warehousing.

There also was testimony of industrial development and of efforts to attract more industry. The Geospace Industrial Park was established for that purpose. Other developments of great significance in connection with industrial development, as well as growth generally, consisted of the formation of the Little Blue Sewer District and the establishment of a plan to control flooding in the Little Blue River Valley, joint projects of the federal government and Jackson County, with some local government participation.

Little Blue Sewer District was created for the purpose of constructing a large common interceptor sewer which would serve the entire area from Cass County north through the Little Blue Valley, including eleven municipalities in eastern and southern Jackson County. It was designed to collect sewage from sewer systems of the various municipalities and carry it to a treatment plant to be constructed in the Atherton Bottoms near the point where the Little Blue River empties into the Missouri River. The project was designed to enable cities to have adequate sewer systems and to eliminate the dumping of insufficiently treated sewage into the river, thereby producing compliance with state and federal clean water and anti-pollution statutes. Construction of the sewer was commenced in Independence because that was where the need for service was greatest and because it was necessary, in order to sell revenue bonds for the project, to enlist Independence which had the best municipal bond rating. At the time of trial that portion of the interceptor sewer had been constructed and Independence and Blue Springs were utilizing it. For this Independence was paying more than $30,000 per month in fees. A temporary treatment plant to handle this sewage had been constructed pending completion of the interceptor sewer and construction of the treatment plant in the Atherton Bottoms. Completion of the system is scheduled for 1982.

The river control project called for straightening and widening of the channel of the Little Blue River and for the construction of two lakes to impound flood waters. The project was designed to eliminate all except so-called 100 year floods, thereby making land in the flood plains usable, particularly for industrial development. As a part of this project there is to be an industrial expressway (Little Blue Valley Expressway) following generally the course of the river, and Jackson County will acquire lands adjacent to the river which will be utilized as a county park to be known as the Little Blue Trace Parkway. The federal government is to pay most of the cost of this project but local government is expected to bear certain expenses. For example, Independence will pay bridge costs over the relocated river channel at Truman Road and at R. D. Mize Road.

Testimony indicated that much of the land in the flood plain of the Little Blue has not been usable because of the threat of flooding and because of lack of sewage facilities but that it could and would be utilized upon completion of the two projects. Mayor King testified that this would permit the city for the first time to have large tracts readily available for industrial development. To a limited extent land for such use would become available in the city as it existed prior to the 1972 annexations but to a much greater extent lands would be available for this purpose in the newly annexed area to the east.

Additional evidence of the urban nature of the area consisted of testimony which disclosed that during this period of growth the value of vacant land has increased substantially. It exceeds the value the land would have for agricultural purposes, ranging from $2,000 per acre upwards to as much as $150,000 per acre in the area of Independence Center.

Witnesses on behalf of Independence testified that Independence needed to annex the areas in question. This need to annex was based on expected growth in population and on industrial and commercial needs. It was their position that sufficient area for these purposes was not available in the city as it existed at the time of the decision to annex and that the only direction in which Independence could expand is to the east and northeast where the five territories are located. Witnesses for Independence, particularly its director of planning, explained that annexation of these five territories is absolutely essential to Independence. In addition to meeting a need for additional land they are adjacent to Independence, are next to the Little Blue River Flood plain area in Independence which will be developing as a result of the sewer and channel control plans and what occurs there vitally affects Independence. The witnesses testified that if annexation does not occur at this time, the placement and construction of streets, sewage disposal systems and other public utilities will not be controlled. There is no provision for proper juncture of streets. If these are not properly constructed, future maintenance costs will be prohibitive after development has occurred. In addition, Jackson County has no building codes. Such codes provide for safety of construction of buildings and houses and these features will be missing in some of the construction which will take place in the areas in question if annexation does not occur.

In response to plaintiffs’ contention that Independence as it then existed had a high percentage of land classified as vacant, and hence did not need to annex, the witnesses pointed out that much of that so-called vacant land was not actually available to meet residential, commercial and industrial needs. Some was not usable because of steep grades or unacceptable terrain and some was in the flood plain. Some could not be used because underground mining for limestone was such that the surface would not support commercial or industrial construction. Some land was not available because the owners did not want to sell. Some owners are holding their land for future development. In addition, some of the land classified as vacant was not actually available unused vacant land. For example, land owned by an industrial or commercial plant in excess of the amount required to meet zoning requirements is counted as vacant rather than occupied land even though it is not available for use by others. To illustrate, Lipton Tea Company has a tract which is several times the area required by zoning laws for its plant and parking requirements. The tract is landscaped and held for possible future expansion by Lipton. However, in figuring vacant land the excess over that required by zoning for plant and parking was classified as vacant land, even though it is not available to others. Likewise, in the case of residential property, any excess over and above the 7200 square feet required by zoning laws for a single family dwelling is classified as vacant land even though it is utilized as a part of the residential tract. An example given was a tract on which the home of one of the attorneys in this case was located. It is large enough that eight homes, each with the required 7200 square feet, could be built thereon. Although the whole tract was landscaped and utilized as yard for the one house, all but 7200 square feet was classified as vacant. Finally, Mr. Bullard, the Independence Director of Planning, testified that intensity of use of its land area by Independence was almost exactly the same as the intensity of use by Kansas City of its land area.

The foregoing constituted substantial evidence that Independence did not have sufficient vacant land to satisfy its needs.

Plaintiffs also attack the annexation of Territory 1 as unnecessary and unreasonable because it consists largely of the United States government’s Lake City Reservation where Remington Arms Company operates an arsenal for the government and therefore no municipal services could be furnished to it. They argue that the Reservation furnishes its own services. We overrule this contention. In the first place, such an annexation is permissible. Howard v. Commissioners of Louisville, 344 U.S. 624, 73 S.Ct. 465, 97 L.Ed. 617 (1953); Kansas City v. Querry, 511 S.W.2d 790 (Mo.1974). Furthermore, there was evidence that after the decision in State at inf. of Martin v. City of Independence, supra, officials at the Lake City Reservation conferred with Independence officials concerning availability of city supportive services, utilities and public safety. Mayor King testified that they had met to begin preliminary arrangements for the provision of those services. The United States did not seek to intervene or to oppose the annexation.

In view of our decision that the city’s legislative decision to annex is to be sustained, we need not and do not reach other questions raised by the City of Independence attacking the right of plaintiffs to maintain this action. Likewise, it is not necessary to consider plaintiffs’ cross-appeal wherein they contended that the trial court should have held the annexations void rather than voidable. That question is moot.

We hold that the evidence shows that the reasonableness of and necessity for the legislative decision by the City Council of Independence to annex the five territories was at least fairly debatable. Accordingly, we hold that the annexations were valid. The judgment of the trial court is reversed.

BARDGETT, C. J., and DONNELLY, RENDLEN, SEILER and MORGAN, JJ., concur.

HIGGINS and WELLIVER, JJ., not participating because not members of the court when cause was submitted.

      . All statutory references are to RSMo 1969 unless otherwise indicated.

      . The court recognized that § 71.870 is valid and that it requires that charter cities in first class chartered counties hold simultaneous separate elections in the annexing city and in the area to be annexed. It did not apply to the December 5, 1972, elections by the City of Independence because Jackson County would not become a first class chartered county until January 1, 1973.


author: PER CURIAM. DONNELLY, Judge,

text:
    STATE of Missouri ex rel. MARYLAND HEIGHTS CONCRETE CONTRACTORS, INC., Relator, v. The Honorable Franklin R. FERRISS, Respondent.
    No. 61116.
    Supreme Court of Missouri, En Banc.
    Sept. 11, 1979.
    Rehearing Denied Nov. 14, 1979.
    Peter B. Hoffman, Joseph M. Kortenhof, Kortenhof & Ely, St. Louis, for relator.
    Lawrence B. Grebel, Donald L. James, Moser, Marsalek, Carpenter, Cleary, Jaeck-el, Keaney& Brown, St. Louis, for respondent.
   PER CURIAM.

This is an original proceeding in prohibition. The case arises out of a wrongful death action filed by the survivors of Donald Meiser against Maryland Heights Concrete Contractors, Inc. (hereinafter “Maryland”). Maryland was a subcontractor of Meiser’s employer, Charter Development Corporation (hereinafter “Charter”). The plaintiffs alleged that Meiser was killed at a construction site by the explosion of a space heater due to Maryland’s negligence. Maryland denied negligence on its part, asserted contributory negligence by Meiser, and filed a third-party petition against several third-party defendants, including Charter, asserting that each third-party defendant shared responsibility for the death. Charter moved to dismiss the third-party petition against it, asserting that as Meiser’s employer, its liability under The Workmen’s Compensation Law excluded all other liability. See section 287.120, RSMo 1978. After argument on October 20, 1978, respondent Judge Ferriss indicated his intention to sustain Charter’s motion to dismiss. Our preliminary rule in prohibition issued December 18, 1978.

The question is whether Charter, as Meiser’s employer, can be made a defendant in the underlying case under the authority of Missouri Pacific Railroad Company v. Whitehead & Kales Company, 566 S.W.2d 466 (Mo. banc 1978).

We need not examine the breadth and scope of Whitehead & Kales, supra, because the question is answered by section 287.-120.1, RSMo 1978, which provides:

1. Every employer subject to the provisions of this chapter shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of his employment, and shall be released from all other liability therefor whatsoever, whether to the employee or any other person. . . . ”

The statute, supra, is clear and unambiguous. It operates to release the employer from all other liability. In McDonnell Air. Corp. v. Hartman-Hanks-Walsh P. Co., 323 S.W.2d 788 (Mo.1959), the court allowed the non-employer defendant to maintain an indemnity action against the employer of the injured employee but only on the basis that the employer defendant (Hartman) had breached a duty it expressly agreed (contracted) to perform with the non-employer (McDonnell). The rationale of the McDonnell case, supra, supports the conclusion that, aside from the exception noted therein, the employer is not liable to the non-employer defendant for any sums that non-employer party is liable for to the injured plaintiff-employee in tort.

Other cases cited by relator have been considered. The court holds that section 287.120.1, RSMo 1978, statutorily immunizes Charter, the employer, from common-law liability to Maryland Heights Concrete Contractors, Inc., and Missouri Pacific Railroad Company v. Whitehead & Kales Company, supra, does not remove the immunity conferred by section 287.120.1, supra.

Relator contends section 287.120.1 violates sections 2, 10, and 14 of Art. 1, Mo. Const., and the due process clauses of the U.S. Constitution, amendments 5 and 14. Similar attacks were made upon the Florida statute which immunized the employer from liability in tort for contribution in a suit by a negligent third-party defendant. The contentions were rejected in Seaboard Coast Line R. Co. v. Smith, 359 So.2d 427 (Fla.1978). In speaking about workmen’s compensation, the court stated at 429:

“The Workmen’s Compensation Act, by its express terms, replaces tort liability of the employer with strict liability for payment of the statutory benefits without regard to fault. An employer under this Act is not liable in tort to employees by virtue of the express language of the Act. Such immunity is the heart and soul of this legislation which has, over the years been of highly significant social and economic benefit to the working man, the employer and the State. And, whether the injury to the employee is caused by ‘gross negligence’, ‘wanton negligence’, ‘simple negligence’ passive or active, or no negligence at all of the employer, is of no consequence. There is no semblance of suggestion in these statutes that the Legislature intended to make any distinction in degrees of negligence so far as the employer’s immunity is concerned and we see no reason or logic in any distinction. Section 440.11, supra, precludes an employer from being designated a person ‘jointly or severally liable in tort for the same injury to person or property’ as used in the contribution act. This provision seems to be supported by the great weight of authority.”

And thereafter, in addressing the constitutional challenge, the court stated at 429— 430:

“As to the constitutional challenge of Section 440.11, as set forth above, we adopt as ours the views expressed in Coates v. Potomac Electric Power Co., 95 F.Supp. 779 (D.D.C.1951), with reference to the Federal counterpart of our Workmen’s Compensation Act, when the Federal employer immunity was challenged as against the due process clause because the tort liability immunity precluded a third party tortfeasor from obtaining contribution from a negligent employer as follows:
“ ‘[3,4] Enactment of the Longshoremen’s and Harbor Workers’ Compensation Act has been held a valid exercise of the constitutional authority of the Congress .
“ ‘[5] ... by the holding that the Gas Company is lifted from the category of joint tort-feasor by § 905, Potomac Electric is deprived of the right to contribution which it otherwise might have claimed. However, the right to contribution is not a vested right on which legislation may not impinge . . liability in tort is several not joint, however many participate in inflicting the wrong and whether they act separately or in conjunction. Tort-feasors come severally into court, however, many may be brought together, and each is bound to the injured person separately and for the full injury. .. .
“ ‘In a case where the employer has paid compensation under the Act, a balancing of the equities does not require allowance of contribution. The Longshoremen’s Act substitutes for the employer’s common law liability for damages to an injured employee an absolute duty to pay the prescribed compensation, broadening his duty to pay compensation to include injuries for which he otherwise would not be required to respond, . . “To impose a non-contractual duty of contribution on the employer is pro tanto to deprive him of the immunity which the statute grants him in exchange for his absolute, though limited, liability to secure compensation to his employees.” . . . ’”

The holding of Seaboard Coast Line R. Co. v. Smith, supra, is sound and applicable here.

The court holds section 287.120.1, RSMo 1978, is not unconstitutional for any of the reasons asserted by relator in this case.

The respondent trial judge was correct. The third-party petition seeking contribution from the employer Charter should be dismissed. Our preliminary rule in prohibition is quashed.

BARDGETT, C. J., RENDLEN, MORGAN, JJ., and HIGGINS, Special Judge, concur.

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

SEILER, J., and HENLEY, Senior Judge, dissent and concur in separate dissenting opinion of DONNELLY, J.

WELLIVER, J., not sitting.

DONNELLY, Judge,

dissenting.

In Sampson v. Missouri Pacific Railroad Co., 560 S.W.2d 573 (Mo. banc 1978), this Court affirmed a $300,000 judgment against Missouri Pacific for damages sustained by Robert Sampson, an employee of its consignee.

In Missouri Pacific Railroad Company v. Whitehead & Kales Company, 566 S.W.2d 466 (Mo. banc 1978), the appeal involved an attempt by Missouri Pacific, under Rule 52.11, to bring Whitehead & Kales into the Sampson case as a third party defendant liable to Missouri Pacific for all or part of Sampson’s claim against Missouri Pacific. The trial court dismissed the third party petition. We reversed and remanded, and adopted a system for the distribution of tort liability on the basis of relative fault, which will apply (1) where tort-feasors are joined as defendants by plaintiff and defendants cross-claim under Rule 55.32(f); and (2) where tort-feasors are added as defendants under Rule 52.11.

The question posed in this case is: How do we adjust and apply the system of relative fault in those situations, like the present, where judgment and recovery against one of multiple defendants is legally barred? In this case the bar is raised by The Workmen’s Compensation Law. The purpose of that Law would be circumvented if Charter, the employer, could be held liable to Maryland for Charter’s relative fault in causing plaintiff’s harm. Therefore, a judgment cannot be entered against Charter in this case. A similar situation, with similar result, would arise if the legal bar were in the form of a release given by the plaintiff to one of multiple defendants. See e. g., State ex rel. Normandy Orthopedics, Inc. v. Crandall, 581 S.W.2d 829 (Mo. banc 1979). Again, the purpose and function of the release would be circumvented if the released defendant could be held liable to other defendants for his relative fault in causing plaintiff’s harm. Therefore, a judgment could not be entered against the released party.

Inability to render a judgment against all multiple tort-feasors, however, does not make it necessary that we narrow the application of the relative fault concept in this case. The relative fault of Maryland, the tort-feasor, against which there is no legal bar to judgment should still be determined. In my view, a pure concept of relative fault requires that the right of a claimant to recover from one tort-feasor be determined in accordance with a jury’s finding of the respective percentages of fault as between all tort-feasors.

To illustrate:

A sues B. B brings in C. The jury assesses A’s total damages at $100,000, and finds B 60% at fault and C 40% at fault. Prior to trial, A gave C a release for a consideration of $20,000. The trial court would enter judgment for A against B for $60,000. A would collect a total of $80,000.

A sues B. B brings in C. The jury assesses A’s total damages at $100,000, and finds B 60% at fault and C 40% at fault. Prior to trial, A gave C a release for a consideration of $50,000. The trial court would enter judgment for A against B for $60,000. A would collect a total of $110,-000.

A sues B. B brings in C. The jury assesses A’s total damages at $100,000, and finds B 60% at fault and C 40% at fault. A, as an employee of C, has received benefits in the amount of $8,000 under The Workmen’s Compensation Law but is barred from further recovery against C by § 287.-120, RSMo 1978. The trial court would enter judgment for A against B for $60,000. A would collect a total of $68,000.

The need to determine the relative fault of tort-feasors would also require that motions to sever under Rule 66.02 would seldom, if ever, be granted where judgment against one tort-feasor is legally barred. Informing the jury of any extra-judicial payments by the non-liable tort-feasor to the plaintiff, e. g. workmen’s compensation payments, or consideration for a release, would likewise interfere with the determination of relative fault and thus would not be permitted.

To return to the case before us: Even though a judgment cannot be entered against Charter because of the bar raised by The Workmen’s Compensation Law, Charter should remain a party in the action in order to assure an accurate and fair determination of the relative fault and liability of Maryland. See Rule 52.04(a), which provides, in effect, that Charter should remain a party in this action because “in * * * [its] absence complete relief cannot be accorded among * * * ” plaintiffs and Maryland.

I would make the preliminary rule in prohibition absolute.

I respectfully dissent.

      . Art. 1, sec. 2: “That all constitutional government is intended to promote the general welfare of the people; that all persons have a natural right to life, liberty, the pursuit of happiness and the enjoyment of the gains of their own industry; that all persons are created equal and are entitled to equal rights and opportunity under the law; that to give security to these things is the principal office of government, and that when government does not confer this security, it fails in its chief design.”
      Art. sec. 10; “That no person shall be deprived of life, liberty or property without due process of law.”
      Art. 1, sec. 14: “That the courts of justice shall be open to every person, and certain remedy afforded for every injury to person, property or character, and that right and justice shall be administered without sale, denial or delay.”


text:
    STATE of Missouri ex rel. ADVANCED CIRCUITRY DIVISION, LITTON SYSTEMS, INC., Relator, v. Honorable Jack A. POWELL, Judge, Circuit Court of Greene County, Missouri, Respondent.
    No. 61117.
    Supreme Court of Missouri, En Banc.
    Sept. 11, 1979.
    David W. Ansley, Lynn C. Rodgers, Wool-sey, Fisher, Whiteaker & Stenger, Springfield, for relator.
    Bill H. Clampett, Paul D. Rittershouse, Daniel, Clampett, Rittershouse, Dalton & Powell, Warren S. Stafford, Taylor, Stafford, Gannaway & Woody, Robert W. Schroff, Schroff, Keeter, Glass & Newber-ry, P.C., Springfield, for respondent.
    John C. Rasp, Peper, Martin, Jensen, Mai- . chel and Hetlage, St. Louis, for amicus.
   PER CURIAM.

This is prohibition. The case arises out of an action filed by Renee Scurlock and Con Scurlock, her husband, against defendants Gulf and Western Manufacturing Company, Alva Allen Industries, Inc., Positive Safety Manufacturing Company, and C. A. Nord-gren Company, for personal injuries sustained by Renee Scurlock while she was employed by Advanced Circuitry Division, Litton Systems, Inc. Gulf and Western, Positive Safety, and Nordgren filed third-party petitions against Litton. Litton filed motions to dismiss the petitions, asserting that as Renee Scurlock’s employer, its liability under The Workmen’s Compensation Law excluded all other liability. See section 287.120, RSMo 1978. After argument on October 11,1978, respondent Judge Powell, on October 18, 1978, indicated his intention to overrule the motions to dismiss. Our preliminary rule in prohibition issued December 18, 1978.

For the reasons stated in State of Missouri ex rel. Maryland Heights Concrete Contractors, Inc. v. Ferriss, 588 S.W.2d 489 (Mo. banc 1979) (No. 61116, decided concurrently herewith), the preliminary rule in prohibition is made absolute.

BARDGETT, C. J., RENDLEN and MORGAN, JJ., and HIGGINS, Special Judge, concur.

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

SEILER, J., and HENLEY, Senior Judge, dissent and concur in separate dissenting opinion of DONNELLY, J.

WELLIVER, J., not sitting.

DONNELLY, Judge,

dissenting.

I respectfully dissent for the reasons stated in my dissenting opinion filed in State ex rel. Maryland Heights Concrete Contractors, Inc. v. Ferriss, 588 S.W.2d 489 (Mo. banc 1979) (No. 61116, decided concurrently herewith).


text:
    STATE of Missouri ex rel. VICTAULIC COMPANY OF AMERICA, Relator, v. The Honorable Robert A. MEYERS, Judge, Circuit Court, Jackson County, Missouri, Respondent.
    No. 61332.
    Supreme Court of Missouri, En Banc.
    Sept. 11, 1979.
    Jack G. Beamer, Phillip S. Smith, Kansas City, for relator.
    Joseph A. Sherman, Jackson & Sherman, Kansas City, R. Brian Hall, Gladstone, for respondent.
   PER CURIAM.

This is prohibition. The case arises out of an action filed by Leonard Bivona and Lillian Christian Bivona against Victaulic Company of America for personal injuries sustained by Leonard Bivona while he was employed by Foley Heating and Plumbing Company. Victaulic filed a third-party petition against Foley. Foley filed a motion to dismiss the petition, asserting that as Leonard Bivona’s employer, its liability under The Workmen’s Compensation Law excluded all other liability. See section 287.-120, RSMo 1978. After argument, respondent Judge Meyers, on January 12, 1979, ordered the dismissal of Victaulic’s third-party petition. Victaulic’s petition for writ of prohibition was filed April 6, 1979, and the cause was argued and submitted May 21, 1979.

For the reasons stated in State of Missouri ex rel. Maryland Heights Concrete Contractors, Inc. v. Ferriss, 588 S.W.2d 489 (Mo. banc 1979), the petition for writ of prohibition is denied.

BARDGETT, C. J., RENDLEN and MORGAN, JJ., and HIGGINS, Special Judge, concur.

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

SEILER, J., and HENLEY, Senior Judge, dissent and concur in separate dissenting opinion of DONNELLY, J.

WELLIVER, J., not sitting.

DONNELLY, Judge,

dissenting.

I respectfully dissent for the reasons stated in my dissenting opinion filed in State ex rel. Maryland Heights Concrete Contractors, Inc. v. Ferriss, 588 S.W.2d 489 (Mo. banc 1979).


author: PER CURIAM:

text:
    STATE of Missouri, Respondent, v. ALL STAR NEWS AGENCY, Appellant.
    No. 61317.
    Supreme Court of Missouri, En Banc.
    Oct. 10, 1979.
    Respondent’s Motion to Stay Mandate Denied Nov. 5, 1979.

      Leonard J. Frankel, Richard S. McConnell, Jr., Clayton, for appellant.
    John D. Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   PER CURIAM:

This appeal involves a civil proceeding wherein the State seeks forfeiture and destruction, under §§ 542.281 and 542.301, RSMo 1978, of allegedly obscene materials.

A Notice of Adversary Hearing was issued on June 6, 1977. On June 8, 1977, an adversary hearing on the probable obscenity of the items covered by the notice began. On June 16, 1977, the trial court found probable cause and a warrant issued. On July 8, 1977, a jury began its deliberations. On August 2, the jury returned verdicts finding most of the items obscene. On September 23, 1977, the trial court entered its declaration of forfeiture and order of destruction. An appeal was taken to the Eastern District of the Missouri Court of Appeals, where an opinion was filed and adopted on January 23, 1979.

On May 17, 1979, the cause was transferred to this Court by order of this Court. On September 17, 1979, it was argued and submitted.

On April 10, 1979, an opinion was filed and adopted in this Court in State v. All Star News Agency, Inc., 580 S.W.2d 245 (Mo. banc 1979), which appeals involved civil proceedings in September, 1977. The State concedes that under the facts in this case, the opinion in All Star, supra, if still viable, requires reversal; but contends the opinion in All Star, supra, if flawed. We do not agree.

The judgment is reversed and the cause remanded for proceedings not inconsistent with the opinion in State v. All Star News Agency, Inc., 580 S.W.2d 245 (Mo. banc 1979).

BARDGETT, C. J., and DONNELLY, SEILER, WELLIVER, MORGAN and HIGGINS, JJ., concur.

RENDLEN, J., dissents.