Cole v. Smith, 49650

• Decision Date: 09 September 1963
• Docket Number: No. 2,No. 49650,49650,2
• Citation: 370 S.W.2d 307
• Parties: Edward E. COLE and Viola O. Stetina, Appellants, v. Catherine SMITH et al., Respondents
• Court: Missouri Supreme Court

Page 307

370 S.W.2d 307

Edward E. COLE and Viola O. Stetina, Appellants, v. Catherine SMITH et al., Respondents.

No. 49650.

Supreme Court of Missouri, Division No. 2.

Sept. 9, 1963.

Hal B. Coleman, Coleman, Ross & Cekovsky, Clayton, William L. Mason, Jr., St. Louis, for appellants.

Austin C. Knetzger, David E. Horn, William P. Chulick, St. Louis, Oliver F. Erbs, Kirkwood, for respondents.

STOCKARD, Commissioner.

Plaintiffs have appealed from the judgment of the Circuit Court of the City of St. Louis dismissing their petition to contest the validity of the will of Rose Ott. The will purports to devise to persons other than plaintiffs the title to real estate which in the absence of the will would descend to plaintiffs as heirs at law of the testator. For this reason title to real estate is involved. Board of Trustees of Methodist Church v. Welpton, Mo., 284 S.W.2d 580.

Two church organizations and nine individuals were named in the will as beneficiaries and all were made defendants. Apparently personal service was obtained on all the defendants except Della Mason and Alvina Held. On December 22, 1961, plaintiffs filed two affidavits for service by publication. One was executed November 14, 1961, the day the petition was filed, and it was stated therein that 'Alvina Held resides in the City of St. Louis, State of Missouri, but that her present whereabouts are unknown, and cannot, after due diligence, be found within the state.' The other affidavit, executed on December 20, 1961, contained the identical statement concerning Della Mason. An order of publication of notice was issued on December 22, 1961, and the notice directed to Alvina Held and Della Mason was published, the last of the required four publications being made on January 24, 1962, seventy-one days after the petition was filed.

On April 11, 1962, Alvina Held and Della Mason filed a motion to dismiss the petition pursuant to Section 473.083, RSMo 1959, V.A.M.S., which provides in paragraph 4 thereof that in any action to contest the validity of a will 'the petitioner shall proceed diligently to secure and complete service of process as provided by law on all parties defendant. If service of process is not secured and completed upon all parties defendant within sixty days after the petition is filed, the petition, on motion of any defendant, duly served upon the petitioner or his attorney of record, in the absence of a showing by the plaintiff of good cause for failure to secure and complete service, shall be dismissed by the circuit court at the cost of petitioner.'

Alvina Held and Della Mason were legatees, and were necessary parties to an action to set aside the will. Blatt v. Haile, Mo., 291 S.W.2d 85, 89. Neither was personally served, and apparently no summons directed to either was ever issued. At least, no non est return was made. Alvina Held then resided, and for many years had resided, at 5718 Finkman Avenue, St. Louis, Missouri, and she was listed in the St. Louis City Directory and shown to be residing at that address. Della Mason then resided, and for many years had resided, at 2231 Brown Road, Overland, St. Louis County, Missouri. She was listed in the telephone book as 'Mrs. D. Mason,' and she was also listed in the St. Louis County directory and shown to be residing at the above address. The application for letters testamentary in the estate of Rose Ott on file with the Probate Court of the City of St. Louis, contained the names of Alvina Held and Della Mason as legatees under the will, and the address of each was there shown to be as above stated. During the sixty day period following the filing of the petition both of these defendants were at their respective places of residence and subject to being personally served. Apparently, the only effort to locate Alvina Held and Della Mason for purposes of obtaining service on them was made by the secretary of plaintiffs' counsel at his request. She checked the files in the office where she worked, 'checked the phone books' and a 'street directory.' She also called various persons listed under the name of Mason or Held but did not locate these two defendants. She did not know how many calls she made, but as she said, 'it totaled probably four days phone calling back and forth because I located numbers and I called, and I would get no answers, and then I would try the next day.' She did not consult the St. Louis City or St. Louis County directories because 'we didn't have either one of those books in our office,' and she did not check the file in the Probate Court of the City of St. Louis pertaining to the estate of Rose Ott. She 'couldn't say for sure' whether she saw the listing in the telephone directory for 'Mrs. D. Mason' because she was 'looking for Della Mason.'

The trial court sustained the motion of Alvina Held and Della Mason and dismissed the petition. Appellants assert on this appeal that service by publication is a 'separate and permissive' method of obtaining service, Civil Rule 54.08, V.A.M.R.; that the order of publication was made on December 22, 1961, but 'the clerk [of the circuit court] made no copy available for the printer' until January 2, 1962; that 'this Court knows that this was the Christmas and New Year's holiday season, likely to be celebrated by Christians in a manner appropriate to the customs prevailing in St. Louis, Mo.;' and that this constituted 'good cause for failure to secure and complete service,' or at least there was no showing of lack of good cause. The record shows only that order of publication was entered on December 22, 1961, that a copy was certified on January 2, 1962 as a true and correct copy, and that the first publication was had on January 3, 1962. It does not show the reason for the delay. Those respondents who have filed a brief in this court contend that plaintiffs have failed to 'show good cause for failing to secure and complete service,' and that 'service by publication did not cure the failure to procure personal service' because 'statutes' providing for service by publication are strictly construed and the 'publication was a nullity.' They fail, however, to state why they contend the service by publication was a nullity.

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