State ex rel. Eagleton v. Hall

• Citation: 389 S.W.2d 798
• Decision Date: 12 April 1965
• Docket Number: R,No. 10,No. 50703,10,50703
• Parties: STATE of Missouri ex rel. Thomas F. EAGLETON, Attorney General, Relator, v. The Honorable Harry A. HALL, Judge of the Circuit Court of Jackson County, Missouri, at Kansas City, Divisionespondent.
• Court: United States State Supreme Court of Missouri

Page 798

389 S.W.2d 798

STATE of Missouri ex rel. Thomas F. EAGLETON, Attorney General, Relator, v. The Honorable Harry A. HALL, Judge of the Circuit Court of Jackson County, Missouri, at Kansas City, Division No. 10, Respondent.

No. 50703.

Supreme Court of Missouri, En Banc.

April 12, 1965.

Rehearing Denied May 10, 1965.

Norman H. Anderson, Atty. Gen., Thomas F. Eagleton, former Atty. Gen., J. Gordon Siddens, Asst. Atty. Gen., Jefferson City, Theodore C. Beckett, Sp. Asst. Atty. Gen., Kansas City, for relator.

Glen V. Graf and Roger S. Miller, Kansas City, for respondent.

HENLEY, Judge.

This is an original proceeding in prohibition instituted in this court wherein relator, as Attorney General of Missouri, seeks to prohibit respondent, as Judge of Division 10 of the Circuit Court of Jackson County at Kansas City, from hearing or taking any further action in the case described in the next paragraph. Our provisional rule was issued April 13, 1964. In due time respondent filed his return and relator his reply thereto.

On July 13, 1961 Virginia Gray, et al., (hereinafter referred to as plaintiffs) as legatess and devisees under the will of Mayme B. Allison, deceased, filed a suit in the above-mentioned circuit court against Perrin D. McElroy, public administrator of Jackson County, Carl A. Neibling, Velma Beatrice Benson and the State of Missouri to set aside a codicil to the last will and testament of the deceased. By her will deceased gave to Neibling the right to occupy a room in her residence and to use the furniture, etc., therein for his life; to Velma Benson she gave her real property for life and an automobile; and to the plaintiffs, Virginia Gray, et al., she gave the residue of her estate. By the codicil she revoked the gifts to those plaintiffs, reaffirmed the specific gifts to Neibling and Velma Benson, and gave the residue of her estate to the State of Missouri. As grounds for setting aside the codicil plaintiffs alleged, in substance, undue influence of Neibling and lack of testamentary capacity of the testatrix. The will and codicil were admitted to probate November 10, 1960.

It is agreed that the state has not been served with process in the action to set aside the codicil.

On August 10, 1961, the state, appearing specially for the purpose of its motion only, moved to dismiss the state as a party, and also the action, on the grounds, (1) process had not been served on the state, and, (2) the court did not have jurisdiction of the state because the latter had not waived its sovereign immunity and had not consented to be sued. On October 25, 1961 a judge of the assignment division of the court sustained the motion to dismiss the state 'as a defendant', but overruled the motion to dismiss the action. More than two years later relator filed his petition for writ of prohibition.

After the state's motion was ruled, defendant Neibling filed a motion to dismiss on the ground that plaintiffs had not secured and completed service of porcess on the state within sixty days after filing of their petition. This motion was overruled.

In his return, respondent alleges that relator, by and through his assistant, waived immunity of the state by appearing and participating in depositions taken by plaintiffs in the action to set aside the codicil. Denying the waiver in his reply, relator admitted that one Richard R. Greenlee, an employee of the attorney general, attended and participated in the taking of said depositions, but further alleged that Greenlee was employed solely as a tax investigator, was not an assistant attorney general, and did not have authority to represent the state.

The basic problem presented is whether respondent has jurisdiction to hear and determine the action to set aside the codicil in the absence of the state as a party defendant. Within that problem is the question of whether the state is a necessary party. Respondent's contention that the state is not a necessary party is without merit for that contention was laid to rest and the question resolved more than one hundred years ago. In Eddie v. Parke's Executor, 31 Mo. 513 (March Term, 1862) this court was presented with a like question. There the testator gave a small legacy to his daughter, one of the plaintiffs, and the residue of his estate to his grandchildren, the children of that daughter. The grandchildren were not made parties defendant in the action to contest the will. The trial court sustained the executor's demurrer to the petition on the ground that the devisees under the will were not made parties. Affirming that judgment this court said '* * * the only parties interested in the estate are the children of [plaintiffs]; yet neither of them are made parties to the proceeding, though the very object of the suit is to divest them of the property devised to them by their grandfather. No decree or judgment under such circumstances could have any force or effect, for a judgment is only operative against those who are made parties to the suit. * * *.' Blatt v. Haile, Mo., 291 S.W.2d 85, 89[3, 5]; Cole v. Smith, Mo., 370 S.W.2d 307, 308.

Although the point sought to be made is not clear, we understand respondent argues also that the state does not have an interest in the estate of which it could be divested because a will or codicil is always subject to being set aside. The argument seems to be that the interest of the state as the sole legatee and devisee of the residuary estate was suspended when the suit to set aside the codicil was filed; therefore, the state did not have an interest of which it could be deprived. The argument is without merit. The state has a legal and a beneficial interest in the residual estate which it acquired upon the death of the testatrix. Section 473.260. (References to statutes are to RSMo 1959 and V.A.M.S.) The state is a necessary party to a complete determination of the action and without it any judgment entered would be only a partial determination thereof. Eddie v. Parke's Executor, supra.

The rule is that the state, by reason of its sovereign immunity, is immune from suit and cannot be sued in its own courts without its consent. See Kleban v. Morris, 363 Mo. 7, 247 S.W.2d 832, 836 and cases there cited; 81 C.J.S. States Sec. 214, p. 1300. 'A suit, involving property in which the state has an undoubted right or interest, and in which no effective decree can be rendered without binding the state itself, is a suit against the state and cannot be maintained without is consent. * * *' 81 C.J.S. States Sec. 216c, p. 1320. The respondent does not now have, and cannot acquire jurisdiction of the person of the state in the absence of a waiver by the state of its sovereign immunity and its consent to be sued. Without jurisdiction of the state as a party what could the court accomplish by proceeding to hear and determine the action to set aside the codicil? The three remaining defendants (the public administrator [although the record does not so show, we assume his only interest is that of personal representative of the deceased in the place of the executor appointed by the will], Neibling and Benson) take nothing under the codicil, the gifts to Neibling and Benson being provided for in the unattacked will. Consequently, the only person left whose rights can be affected by action of the court is the state. As stated, that person is not a party. And respondent is...