State ex rel. Sturm v. Allison

Decision Date14 December 1964
Docket NumberNo. 50697,50697
Citation384 S.W.2d 544
PartiesSTATE of Missouri ex rel. Frances P. STURM, John T. Sturm, John P. Sturm, and John T. Sturm, Guardian of Frances Jane Sturm, a minor, Relators, v. Emery W. ALLISON, Judge of The Circuit Court of Phelps County, Respondent.
CourtMissouri Supreme Court

Cox, Cox, Cox & Moffitt, Harvey B. Cox, William A. Moffitt, Jr., St. Louis, Breuer, Northern & Crow, Eugene E. Northern, Rolla, for relators.

H. Jackson Daniel, Jerome F. Raskas and Bernard A. Ruthmeyer, Jr., St. Louis, and Dewey Routh, Rolla, Guilfoil, Caruthers, Symington, Montrey & Daniel, St. Louis, Routh & Turley, Rolla, for respondent Emery W. Allison.

STORCKMAN, Judge.

This is an original proceeding to prohibit the respondent circuit judge from enforcing an order alleged to be in violation of a mandate of this court. The question presented is whether this court's opinion and mandate issued pursuant thereto precluded the respondent from undertaking for the second time to rule on a motion for new trial and from granting a new trial on a ground of the motion other than the one specified in the court's first ruling.

The relators were the plaintiffs in an action filed in the Circuit Court of Phelps County to contest the will of Walbridge H. Powell dated April 1, 1959, and a codicil thereto dated November 6, 1959. The verdict of the jury was in favor of the validity of the will but found that the paper writing dated November 6, 1959, was not a valid codicil to the will of Mr. Powell. Judgement was entered accordingly and thereafter the proponents-defendants filed their motion for judgment in accordance with their motion for a directed verdict or, in the alternative, for a new trial.

The respondent took up the defendants' motion for judgment or, in the alternative, for a new trial, set aside the verdict of the jury and further ruled and ordered that 'defendants' Motion for Judgment in Accordance with their Motion for directed verdict at close of case [be] sustained, and Judgment [be] rendered that said codicil is the codicil to Last Will and Testament of Walbridge H. Powell, deceased; and further ordered that if this judgment be reversed on appeal, then defendants' Motion for New Trial as to said codicil [be] sustained and defendants [be] granted new trial thereon. It is further ordered that this judgment is on the ground that jury verdict is not supported by substantial evidence; and in event new trial is given, same is on same ground.'

In due course the plaintiffs (relators herein) filed their notice of appeal to this court which notice stated that the plaintiffs 'hereby appeal to the Missouri Supreme Court from the order of this Court setting aside the verdict and judgment heretofore entered in favor of plaintiffs and sustaining defendants' Motion for Directed Verdict at Close of Case and entering judgment that said codicil is the codicil to the last will and testament of Walbridge H. Powell, deceased, and further appeals from the order sustaining defendants' Motion for New Trial and granting defendants a new trial if this Court's judgment that said codicil is the codicil to the last will and testament of Walbridge H. Powell, deceased, is reversed on appeal'. Italics added.

This court did reverse the order and judgment of the trial court and remanded the cause with directions to reinstate the verdict and judgment originally entered thereon. The court's opinion is Sturm v. Routh, Mo., 373 S.W.2d 922, to which reference is made for all matters considered and decided. For present purposes, it is sufficient to say that this court found that 'substantial evidence was adduced which supported the verdict of the jury' on the issue of whether the testator possessed sufficient mental capacity to execute the codicil. 373 S.W.2d 928. The concluding paragraph of the opinion is as follows: 'For the reasons heretofore discussed the judgment is reversed and cause remanded with directions to reinstate the verdict and judgment to the effect that the paper writing dated November 6, 1959, is not the codicil to the last will and testament of testator.' 373 S.W.2d 930.

The mandate of this court, among other things, stated: 'It is further considered and adjudged by the Court that the said cause be remanded to the said Circuit Court of Phelps County for further proceedings to be had therein, in conformity with the opinion of this Court herein delivered'. After the mandate was filed in the circuit court, the respondent judge entered this amended order and judgment on March 6, 1964: 'Mandte of Supreme Court ordered of record and verdict and judgment to the effect that paper writing dated November 6, 1959, is not the codicil to the Last Will and Testament of testator is reinstated. Defendants granted new trial on ground jury verdict finding codicil dated November 6, 1959 to the Last Will and Testament dated April 1, 1959, of Walbridge H. Powell, deceased, is against the greater weight of the credible evidence.' The relators promptly filed their petition for a writ of prohibition and our provisional rule in prohibition was issued.

The issue presented is whether the respondent judge had jurisdiction on remand to consider anew the alternative motion for new trial and to grant the defendants a new trial on another ground. Essentially, the respondent's theory is that the respondent's first attempt to rule on the defendants' alternative motion for a new trial was without legal effect, that the effect of the ruling was not decided on appeal, that the defendants were entitled to have the motion ruled, and on remand the circuit court was vested with jurisdiction to dispose of the motion and to exercise its discretion in doing so. This theory is based on the contention that the alternative motion for a new trial did not specify as one of its grounds 'that [the] jury verdict is not supported by substantial evidence' and since the ruling was made more than thirty days after judgment was entered the 'respondent's ruling on the alternative motion for a new trial was a nullity, the question was left open until this case was remanded to respondent by the Supreme Court.' Loveless v. Locke Distributing Co., Mo., 313 S.W.2d 24, is no authority for respondent's contention because, among other reasons, the motion for new trial in the instant case sufficiently specifies the ground upon which the new trial was first ordered.

In their aftertrial motion for judgment, the defendants requested that the verdict of the jury be set aside and that judgment be rendered in accordance with their motion for a directed verdict. The refusal to direct the verdict was also one of the grounds specified in the alternative motion for a new trial. This specification is as...

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