American Family Mut. Ins. Co. v. Mason, WD
| Decision Date | 27 August 1985 |
| Docket Number | No. WD,WD |
| Citation | 702 S.W.2d 848 |
| Parties | AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Appellant-Respondent, v. Forrest D. MASON, Respondent-Appellant. 36397. |
| Court | Missouri Court of Appeals |
Glenn E. Bradford, James F. Ralls, Jr., Talpers Conger Bronstein Bradford Ralls, Kansas City, for appellant-respondent.
Joe F. Willerth, Independence, for respondent-appellant.
Before SHANGLER, P.J., and TURNAGE and BERREY, JJ.
American Family Mutual Insurance Company filed suit against Forrest Mason to recover the amount American Family had paid Mason on a fire insurance policy. The court entered judgment on a jury verdict for $71,622.69, plus prejudgment interest of $29,759.22, against Mason. The court assessed as costs against American Family $10,968.75, plus $37.50 for expenses, to compensate the guardian ad litem appointed for Mason. The guardian ad litem appeals from the judgment entered against Mason. American Family appeals from the judgment assessing the guardian ad litem fee and expenses against it as costs. Reversed and remanded.
American Family had issued a policy on the residence owned by Mason and his wife. On August 7, 1979, a fire damaged the house and caused the death of Mason's wife. American Family thereafter paid $71,621.84 on the policy but later came to believe Mason had deliberately set the fire. American Family therefore filed suit against Mason to recover the amount it had paid to him.
Prior to the commencement of American Family's suit, Mason had been convicted on an unrelated manslaughter charge and sentenced to the custody of the Missouri Department of Corrections. American Family served Mason with the summons while he was incarcerated.
Mason filed a pro se answer to the suit and requested the court to appoint counsel to represent him. At the suggestion of the court, Mason attempted to obtain representation through the Legal Services Corporation of Mid-Missouri. Legal Services declined to represent Mason. A later attempt by Mason to obtain representation through Legal Aid of Western Missouri was also unsuccessful.
American Family obtained an attachment bond against a house Mason had purchased subsequent to the fire. American Family was eager to proceed without further delay in order to avoid payment of premiums on the attachment bond.
As a result of correspondence between American Family's counsel and the trial court, the court appointed a guardian ad litem for Mason. The court's action was based on the theory that Mason was physically infirm within the meaning of Rule 52.02(k) and therefore the appointment of a guardian ad litem was permissible and in the best interest of both parties. 1 The court appointed an attorney as guardian ad litem for Mason who undertook to represent Mason and tried the case for him. Mason was present in court and testified during the trial.
After the trial, the guardian ad litem filed an application for a fee and requested that the fee be assessed as costs against American Family. American Family objected to the assessment of the fee as costs against it. The court ruled that the guardian ad litem had been properly appointed under Rule 52.02 and that justice demanded that the guardian ad litem receive fair and reasonable compensation. The court ordered American Family to pay the guardian ad litem $10,968.75 for attorney's fees and $37.50 for expenses.
The guardian ad litem raises several points in attacking the judgment against Mason. However, in view of the disposition of this appeal it will not be necessary to discuss those points. American Family contends that the judgment against it for the guardian ad litem fee cannot stand because § 514.060, RSMo 1978, requires costs to be adjudged in favor of the prevailing party, American Family prevailed when the judgment was in its favor, and therefore costs cannot be assessed against American Family. The guardian ad litem counters that the court had inherent authority to appoint a guardian ad litem and therefore has inherent authority to award compensation for services rendered.
Although the trial court mentioned the existence of §§ 460.010-460.250, RSMo 1978, the court did not appoint a trustee under those sections. The parties on this appeal make reference to those sections relating to the estate of convicts but do not base their arguments on those sections.
Sections 460.010-460.250 provide a comprehensive plan for the management of the estate of a convict. Section 460.010 provides that a trustee may be appointed by the circuit court on the application of certain persons, including a creditor of the convict. The statute sets out the duties of the trustee after appointment and provides for supervision by the court. Section 460.100 provides that the trustee may sue in his own name on behalf of the convict for the recovery of property belonging to the convict and may defend all actions commenced against the convict.
The effect of the statute providing for the appointment of a trustee to manage the estate and property of a convict was exhaustively considered in McLaughlin v. McLaughlin, 228 Mo. 635, 129 S.W. 21 (1910). In McLaughlin, the wife brought suit for divorce against McLaughlin while he was confined in the penitentiary. Summons in the divorce case was served on McLaughlin while he was incarcerated. The wife sought alimony and care and custody of the children, and requested that the alimony and support be decreed to her out of property belonging to McLaughlin. The court granted the divorce and vested title to 80 acres McLaughlin owned in the wife. McLaughlin thereafter brought an action to set aside that part of the judgment which divested him of title to the property.
The court noted that no trustee had been appointed for McLaughlin and discussed the provision of the statute governing the appointment of a trustee for a convict who is subject to a suit which may affect his property. The court sustained McLaughlin's contention that the judgment as to the disposition of land was void. The court held that "when the estate of a convict is being attacked by a suit, such convict should be in court through his trustee before a valid judgment could be entered touching his property." McLaughlin v. McLaughlin, supra, 228 Mo. at 647, 129 S.W. at 24.
The court also quoted at length from Rice County v. Lawrence, 29 Kan. 158 (1883). The court stated that the Kansas statutes providing for the appointment of a trustee for a convict were identical to the Missouri statutes. The court quoted the holding in Rice County that when no trustee has been appointed the service of a summons on a defendant while imprisoned must be treated as void and any judgment rendered in such case may be treated as a nullity. McLaughlin v. McLaughlin, supra, 228 Mo. at 650, 129 S.W. at 25.
The court further quoted from Rice County the statement that the criminal conviction suspended the convict's creditors' rights to bring action against him. The court continued by quoting:
"After his imprisonment, a trustee might have been appointed, upon the application of plaintiff or any other creditor, to take charge of and manage his estate; but no valid judgment could be rendered after his imprisonment without the appointment of a trustee."
The court further quoted from Rice County:
The court in McLaughlin stated that the purpose of the statute providing for the appointment of a trustee for a convict was to compel the appointment of a trustee whenever it was desired to attack his estate for the payment of debts or for the support and maintenance of his wife and children. Id. at 652, 129 S.W. at 26. The court further stated that the statute:
[P]rovides a complete scheme within itself for the holding, management, protection, and disbursement of the estate of a convict. Its very purpose is the preservation and protection of the estate and the thwarting of the designs of creditors and others in their attack upon the estate of one helpless by his incarceration.
The court quoted from Rice County the holding that the statutes providing for a...
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Marriage of Burnside, In re
...should be appointed pursuant to § 460.010. See McLaughlin v. McLaughlin, 228 Mo. 635, 129 S.W. 21 (1910); American Family Mut. Ins. Co. v. Mason, 702 S.W.2d 848 (Mo.App.1985). It has been held, of course, that a court has no inherent power to appoint attorneys for convicts to serve in civil......
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...850 (Mo. banc 1991). Murphy was a necessary party to this action, not because Berdella was civilly dead, American Family Mutual Insurance Company v. Mason, 702 S.W.2d 848 (Mo.App.1985), but because Murphy held legal title to Berdella's The appropriate rule for the trial court to consider, t......
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In re Blumeyer, 98-43254-172.
...pre-repeal Chapter 460 provided a comprehensive plan for the management of the estate of a convict. American Family Mutual Insurance Company v. Mason, 702 S.W.2d 848, 850 (Mo.Ct.App.1985). Pre-repeal, the Chapter 460 Trustee was not permitted to hire an attorney under § 460.100 and, under §......
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Lockhart v. Middleton, WD
...of a trustee in order to obtain a valid judgment on a suit which attacks the property of a convict. See American Family Mut. Ins. Co. v. Mason, 702 S.W.2d 848 (Mo.App.1985). In 1990, Chapter 460 was repealed with the exception of § 460.100, authorizing a trustee to sue and be sued on behalf......