Shaffer v. Cochenour

• Decision Date: 27 June 1978
• Docket Number: No. 39009,39009
• Citation: Shaffer v. Cochenour, 569 S.W.2d 320 (Mo. App. 1978)
• Parties: Mary E. SHAFFER et al., Plaintiffs-Appellants, v. Robert COCHENOUR et al., Defendants-Respondents. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 320

569 S.W.2d 320

Mary E. SHAFFER et al., Plaintiffs-Appellants, v. Robert COCHENOUR et al., Defendants-Respondents.

No. 39009.

Missouri Court of Appeals, St. Louis District, Division Three.

June 27, 1978.

Motion for Rehearing or Transfer Denied July 17, 1978.

Application to Transfer Denied Sept. 12, 1978.

J. William Holliday, Kahoka, for plaintiffs-appellants.

Oswald & Cottey, Kirksville, for defendants-respondents.

GUNN, Presiding Judge.

This appeal, involving a will contest, is from a judgment of the circuit court of Scotland County dismissing count I of plaintiffs' petition for failure to join and serve all necessary parties within the statutory period as required by § 473.083. ¹ Appellants argue that the trial court erred in sustaining respondents' motion to dismiss, in that all necessary parties were joined within the statutory time limits, although prior to trial one party was granted a voluntary dismissal and was not subsequently rejoined. We reverse and remand.

The testator, Earl Cochenour, died on March 3, 1976. Shortly thereafter a writing purported to be his last will and testament was admitted to probate in Scotland County, and Letters Testamentary were issued to his sons Wayne, Robert and Gary Cochenour. The first publication of the notice of granting letters in the estate appeared on April 15, 1976. Prior to that date, on April 5, 1976, plaintiffs Barbara Clowser, Mary E. Shaffer, Doris Hines and Bertha McBride filed a petition to set aside the will of their father, Earl Cochenour. ² Robert, Wayne, Betty, Gary and Janice Cochenour, individually, and Robert, Wayne and Gary Cochenour, as executors, were named as party defendants. It was stipulated that all of the original plaintiffs, in addition to being heirs at law, were legatees under the contested will.

On July 15, 1976, plaintiff Barbara Clowser, through her attorney, took a voluntary dismissal without prejudice under Rule 67.01 V.A.M.R. Her attorney, who also represented two of the other plaintiffs, explained that Barbara Clowser, a California resident, sought dismissal because she did not wish to return to Missouri for a scheduled deposition. There was no attempt to rejoin her in the suit until January 18, 1977, when plaintiffs filed a motion to add her as a party defendant. She did not actually become a party to the suit on the remaining counts until March 11, 1977, when she filed a voluntary entry of appearance.

Meanwhile on January 13, 1977, defendants filed a motion to dismiss the will contest count alleging that the trial court was without jurisdiction because Barbara Clowser, a necessary party, was not joined in the suit as a party defendant within the time periods set out in § 473.083. A hearing was held on defendants' motion at which time plaintiffs' attorney admitted he had been aware that Barbara Clowser was a necessary party and that he had access to her address and telephone number but offered no evidence as to good cause for failing to join her as a party defendant. He argued, however, that because Barbara Clowser had originally been a plaintiff in the suit there was substantial compliance with § 473.083.

The trial court sustained defendants' motion to quash the will contest count with prejudice. Plaintiffs appeal from that judgment. The pertinent provisions of § 473.083 relevant to this suit are:

"1. Unless any person interested in the probate of a will appears within six months after the date of the probate or rejection thereof by the probate court, or within six months after the first publication of notice of granting of letters on the estate of the decedent, whichever is later, and, by petition to the circuit court of the county contests the validity of a probated will, or prays to have a will probated which has been rejected by the probate court, then probate or rejection of the will is binding.

"4. In any such action 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 ninety 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 petitioner of good cause for failure to secure and complete service, shall be dismissed by the circuit court at the cost of the petitioner."

These provisions reflect the declared policy of this state that will contest suits be prosecuted expeditiously or not at all. Kane v. Mercantile Trust Co. N.A., 513 S.W.2d 362 (Mo.1974); Doran v. Wurth, 475 S.W.2d 49 (Mo.1971). There is no common law right to contest the validity of a will. The authority to do so is granted by statute and can only be exercised in accordance with the statutory prescriptions. State ex rel. Cooper v. Cloyd, 461 S.W.2d 833 (Mo. banc 1971); Cole v. Smith, 370 S.W.2d 307 (Mo.1963); Blatt v. Haile, 291 S.W.2d 85 (Mo.1956).

Under § 473.083, the contestant must file his petition to set aside the will within six months of probate or rejection of the will or of the first publication of the notice of granting letters on the estate of the decedent, whichever is later. Further, under subparagraph (4) of that section, the contestant must proceed diligently to complete service of process on each party defendant within 90 days after the petition is filed. Failure to file the suit and complete service of process on all necessary parties within the statutory time limits subjects the contestant to dismissal by the trial court unless good cause is shown explaining his inability to do so. Doran v. Wurth, supra; State ex rel. O'Connell v. Crandall, 562 S.W.2d 746 (Mo.App.1978); Godsy v. Godsy, 531 S.W.2d 547 (Mo.App.1975). The burden to prove the existence of good cause rests on the contestant. Sanderson v. Richardson, 432 S.W.2d 625 (Mo.App.1968). If the statutory time limits are not complied with and if the contestant fails to meet his burden of showing good cause, dismissal of the suit, upon defendants' motion, is mandatory. Foster v. Foster, 565 S.W.2d 193 (Mo.App.St.L., 1978); Crawford v. Bashor, 564 S.W.2d 323 (Mo.App.1978). The statute, though in the form of a special statute of limitations governing will contests, actually confers jurisdiction on the circuit court to entertain such suits. Once the prescribed time period lapses the court is without subject matter jurisdiction and cannot proceed. Haas v. Haas, 504 S.W.2d 44 (Mo.1973); Blatt v. Haile, supra; Sanderson v. Richardson, supra.

In this case, Barbara Clowser, who was one of the legatees...