Jo B. Gardner, Inc. v. Beanland, KCD

• Decision Date: 03 April 1978
• Docket Number: No. KCD,KCD
• Citation: 564 S.W.2d 632
• Parties: JO B. GARDNER, INC., Appellant, v. Ruth M. BEANLAND, Executrix of the Estate of Henry L. Beanland, Deceased, Respondent. 29477.
• Court: Missouri Court of Appeals

Page 632

564 S.W.2d 632

JO B. GARDNER, INC., Appellant, v. Ruth M. BEANLAND, Executrix of the Estate of Henry L.

Beanland, Deceased, Respondent.

No. KCD 29477.

Missouri Court of Appeals,Kansas City District.

April 3, 1978.

Jo B. Gardner, Inc., pro se.

William W. Hoertel, Law Offices of Hoertel & Wiggins, Rolla, for respondent.

Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.

PER CURIAM.

Jo B. Gardner, Inc. (Gardner) filed two claims, one for $10,000.00 and one for $1,788.34, against the Estate of Henry B. Beanland, deceased (Estate), in the Probate Court of Miller County, Missouri. The two claims were apparently consolidated for hearing by the Probate Court and on November 24, 1976, Gardner was allowed $200.00 on the larger claim and nothing on the smaller claim.

Although somewhat hampered by a gaunt record and comparably gaunt briefs, it appears that on December 2, 1976, Gardner timely filed an affidavit for appeal to the Circuit Court of Miller County with the Clerk of the Probate Court of Miller County. Secs. 472.180 and 472.210, RSMo 1969. The Probate Court of Miller County, Missouri, apparently entered an order pursuant to Sec. 472.230, RSMo 1969, within thirty days after Gardner's affidavit for appeal was filed allowing the appeal, because certain portions of the record in the Probate Court were transmitted to the Circuit Court of Miller County, and the Estate thereafter to-wit, on February 15, 1977, filed a motion in the Circuit Court of Miller County to dismiss Gardner's appeal on the ground that the circuit court "has no jurisdiction in this cause". An appeal bond pursuant to Sec. 472.220.2, RSMo 1969 ¹, was not filed by Gardner until January 11, 1977, some forty days after it filed its affidavit for appeal. Shorn of all unnecessary trappings, the only argument advanced by the Estate at the circuit court hearing in conjunction with its motion to dismiss was that the circuit court lacked jurisdiction to entertain Gardner's appeal because of its dereliction in not filing an appeal bond until after expiration of the statutory time for taking an appeal. Parenthetically, Sec. 472.180, supra, so far as here pertinent, provides that "(a)ll appeals shall be taken within thirty days after the decision complained of is made. . . . " The "decision complained of" was made by the Probate Court of Miller County on November 24, 1976, and Gardner did not file its appeal bond until January 11, 1977. The Circuit Court of Miller County evidently subscribed to the Estate's singular argument because it sustained the Estate's motion to dismiss with the following order: "Case dismissed for lack of jurisdiction of this Court." This appeal by Gardner followed.

Gardner contends on appeal that the filing of the appeal bond within the thirty day time limit for taking the appeal was not jurisdictional. The Estate on appeal reargues that Gardner's failure to file the appeal bond within the thirty day time limit prescribed for taking its appeal rendered the appeal untimely and the Circuit Court of Miller County without jurisdiction to entertain it. Additionally, the Estate on appeal elaborates on the jurisdictional issue by arguing that Gardner's failure (1) to "specify exactly the orders, judgments, or decrees appealed from . . . ", as required by Sec. 472.210.1(1), RSMo 1969, and (2) to file with the probate court "a written designation of the record" it desired included in the "transcript to be transmitted to the circuit court . . .", as required by Sec. 472.210.1(2), RSMo 1969, constitute further grounds to support the circuit court's ruling that it lacked jurisdiction to entertain Gardner's appeal from the Probate Court of Miller County.

Bearing in mind that the circuit court dismissed Gardner's appeal on the narrow ground that it lacked "jurisdiction", the thesis advanced by the Estate below and on appeal, the legal propriety of the circuit court's order of dismissal will be reviewed and determined on appeal on the same narrow basis.

The court in In re Phillips' Estate, 357 Mo. 947, 211 S.W.2d 728, 731 (banc 1948), with reference to an appeal bond involving an appeal from the probate court to the circuit court, held that the "requirement of § 287 ² of the statute respecting the giving of an appeal bond is not jurisdictional, and failure to give it is a mere irregularity." ³ The court in Amos v. Wetzel, 133 S.W.2d 361, 362 (Mo.1939),...