Murphy v. Carron, 59167

• Court: United States State Supreme Court of Missouri
• Citation: 536 S.W.2d 30
• Docket Number: No. 59167,59167
• Parties: Lucille V. MURPHY, Respondent, v. Cecelia CARRON and Paul Carron, Appellants.
• Decision Date: 05 May 1976

Page 30

536 S.W.2d 30 Lucille V. MURPHY, Respondent,
v.
Cecelia CARRON and Paul Carron, Appellants. No. 59167. Supreme Court of Missouri, En Banc. May 5, 1976.

Page 31

John A. Schneider, Hillsboro, for appellants.

Mrs. Alice L. C. Kramer, Brunson, Hollingsworth & Associates, Hillsboro, for respondent.

DONNELLY, Judge.

In this court-tried case, Lucille V. Murphy seeks to recover money which she asserts was loaned by her to Cecelia Carron and Paul Carron. The trial court entered judgment in favor of plaintiff and against defendants in the amount of $9,100. The Carrons appealed to the St. Louis District of the Court of Appeals, which affirmed. The cause was transferred here by order of this Court. We decide the cause 'the same as on original appeal.' Mo.Const., Art. V, § 10.

We ordered the transfer of this case and two other cases (In re Novak, Mo., 536 S.W.2d 33; and Roth v. Flieg, Mo., 536 S.W.2d 39) primarily to consider and put to rest as soon as possible questions which have arisen about the scope of review in court-tried civil cases since the revision of our Rule 73.01, effective January 1, 1975.

Before its revision, Rule 73.01(d) provided, in part, that on appeal of a case tried by the court without a jury:

'The appellate court shall review the case upon both the law and the evidence as in suits of an equitable nature. The judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.' (Emphasis added.)

In the revision, the italicized portion of the rule was deleted.

Rule 73.01, as revised, provides in subdivision 3, in part, that on appeal of a case tried by the court without a jury:

'(a) The court shall review the case upon both the law and the evidence as in suits of an equitable nature.

'(b) Due regard shall be given to the opportunity of the trial court to have judged the credibility of witnesses.'

It is suggested, on the one hand, that by deletion of the words italicized above, the Court abandoned the 'clearly erroneous' standard of review and adopted a 'de novo' standard of review. It is suggested, on the other hand, that Rule 73.01 still requires that review be 'as in suits of an equitable nature' and that the 'clearly erroneous' standard is an essential part of the scope of review of suits of an equitable nature.

We must recognize that the law in Missouri as to the scope of appellate review of suits of an equitable nature is in a state of confusion, largely as a result of an attempted use of de novo and clearly erroneous in the same standard of review. Those interested will find the cases in Vol. 3A, Missouri Digest, Appeal and Error, k1009(1) to (4).

Page 32

It is essential now that the Bench and Bar of Missouri be given some sense of direction on the question.

Accordingly, appellate 'review * * * as in suits of an equitable nature,' as found in Rule 73.01, is construed to mean that the decree or judgment of the trial court wil be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Appellate courts should exercise the power to set aside a decree or judgment on the ground that...