183 S.W.2d 905 | Mo. | 1944
Suit by Dalton L. Kinsella, plaintiff, to set aside the will of his deceased sister, Ella Marie Kinsella, on the ground of undue influence and lack of testamentary capacity. From a judgment sustaining the will, plaintiff appeals.
Among others named as defendants were Elizabeth Hanley, beneficiary in the income from property devised to trustees, and the three minor children of plaintiff, contingent beneficiaries in a trust. One of these minors is Dalton L. Kinsella, Jr. The trustees were made defendants and filed answer. A summons for Elizabeth Hanley was returned non est and no alias summons was issued. The minors were served with process and a guardian ad litem appointed and filed answer for them. None of these defendants was an heir of testatrix, her only heirs being her two brothers, the plaintiff, and William J. Kinsella, one of the defendants.
After the filing of the suit by Noah Weinstein as attorney for plaintiff, the proponents of the will twice took the deposition of plaintiff, he being represented each time by attorney B. Sherman Landau. In these depositions, plaintiff testified that he could not remember any word or act of the testatrix which led him to believe that she was of unsound mind or had been unduly influenced in making her will.
The case was filed in the circuit court of the city of St. Louis on March 10, 1943. Judge Sartorius, the assignment judge, set the trial *667 for Monday, June 14, 1943. On the latter date when the case was called Mr. Weinstein made no announcement. Mr. Landau said he was not ready for trial because of being engaged in the trial of another case. On the same day the assignment judge and the guardian ad litem each received a typewritten letter purporting to be signed by defendant, Dalton L. Kinsella, Jr., stating that he was a soldier stationed at Jefferson Barracks; that he did not want the will sustained and that the testatrix was of unsound mind and had been unduly influenced in the making of her will. The letter also contained an affidavit for stay of proceedings under the Soldiers and Sailors Civil Relief Act. Thereupon the assignment judge had a subpoena issued for the notary whose name appeared on the affidavit. This was served on the notary, but she refused to appear. An attachment was issued for her and returned non est. On June 15, Mr. Weinstein appeared in the assignment division and withdrew from the case stating that he had notified his client on the preceding Saturday of his intention to withdraw. The assignment judge had a subpoena served on Dalton L. Kinsella, Jr., and, when he failed to appear, had an attachment issued for him which was returned non est. On the morning of June 16, in the assignment division, Mr. Landau withdrew from the case and plaintiff requested time to employ another attorney. Thereupon Mr. Tucker, an attorney who had been sitting in the court room, stated that he had been consulted by the plaintiff and desired time to confer further with him to determine whether he would represent him. After some colloquy the matter was laid over until two P.M., at which time Mr. Tucker entered his appearance and orally asked a continuance on the ground that he had not had time to prepare the case. On this application being refused, Mr. Tucker filed an affidavit which he had previously prepared asking for a continuance, stating: "that he is a member of the State Legislature, and that the same is in session, and he therefore respectfully requests that all motions and other proceedings of every kind and nature be postponed until after the adjournment of the General Assembly, as provided in Section 1089, Revised Statutes Missouri 1939." This application was also overruled and the case assigned for trial to Division No. 6 presided over by Judge Killoren.
Mr. Tucker appeared in Division No. 6. With him was Mr. Landau, but the latter stated he was not of counsel. Mr. Tucker endeavored to induce Judge Killoren to reconsider the action of Judge Sartorius in refusing a stay under the Soldiers and Sailors Civil Relief Act and in overruling his applications for continuance. This Judge Killoren refused to do, stating that under the circuit court rules he was bound by the rulings of the assignment judge. Mr. Tucker then re-filed his affidavit for continuance and took no further part in the proceedings. A jury was empaneled, the proponents introduced evidence, *668 a verdict was returned and judgment entered establishing the will.
On appeal to this court the abstract and brief of appellant list Geo. O. Durham, Edwin B. Tucker and B. Sherman Landau as attorneys for appellant.
[1] Appellant contends that the judgment is void for lack of service on or appearance of defendant Elizabeth Hanley. [907]
This contention must be overruled for the reason that Elizabeth Hanley is not injured by the judgment establishing the will. As she is not an heir she would take nothing if the will be set aside. The establishment of the will gives her a beneficial interest. If she had participated in the trial she could have protected her interest no better than has been done by the judgment. She could not appeal, because not aggrieved, nor does she have such an interest as would authorize her to bring a suit to set aside the will. [State ex rel. v. McQuillin,
Our ruling does not conflict with any authority cited on this point by appellant. True, under our statutes plaintiff must make all beneficiaries named in a will parties to a will contest in order to get a valid judgment setting the will aside. If any beneficiary is not made a party a judgment setting the will aside is invalid not only as to the omitted party, but as to all parties and the question can be raised by any proponent for the first time on appeal. But it does not follow that a judgmentsustaining a will is invalid for omission of such a party, nor that a plaintiff can make such an objection for the first time on appeal. In the instant case the record fails to disclose that plaintiff made any further effort to get service on Elizabeth Hanley after the summons for her was returned unserved, nor is it shown that plaintiff requested the trial court for time to bring her into court. Kischman v. Scott,
Cases cited by appellant are distinguishable from the instant case. In Eddie v. Parke's Ex'r.,
[2] Appellant complains of the court's refusal to stay the proceedings on the affidavit of Dalton L. Kinsella, Jr., under the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C.A., 521. That Act provides for a stay "unless, in the opinion of the court, the ability of plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service." This language vests some discretion in the court. [Boone v. Lightner,
[3] Appellant contends that the court erred in refusing a continuance. This was a matter resting largely in the court's discretion [Hall v. Williams,
[4] Appellant complains of the refusal of the trial judge to reconsider the rulings of the assignment judge. We think appellant is correct in his contention that, notwithstanding the court rules, the trial judge was not bound by the previous rulings of the assignment judge. [Landau v. Schmitt (Mo. App.),
Finding no prejudicial error, the judgment is affirmed. All concur.