DocketNumber： No. 65156
Citation Numbers： 664 S.W.2d 209, 1984 Mo. LEXIS 313
Judges： Arid, Billings, Blackmar, Donnelly, Gunn, Higgins, Rendlen, Welliver
Filed Date： 2/15/1984
Status： Precedential
Modified Date： 11/14/2024
concurring in part and dissenting in part.
I concur in result in part and dissent in part. I agree with the principal opinion that the trial court correctly determined that right to appeal should be preserved as to the bonded assets, in this case the policy of insurance. I also agree that the trial court did not err when it forced the insurance company, as the price for the right to appeal, to pay interest on the entire unpaid portion of the judgment in the event the appeal is resolved against the defendant and his insurance company.
The question remaining in the case is whether Rule 81.09 should be construed to require either (1) permitting the plaintiff to levy on the balance of the judgment against the defendant before resolution of the appeal, the successfril defendant’s remedy being to sue for the return of the property taken, or, (2) prohibiting plaintiffs levy on the balance of the judgment until resolution of the appeal, the successful plaintiff’s remedy being to sue for and trace any transferred assets. The principal opinion holds that Rule 81.09 mandates the first alternative in the absence of evidence justifying a different result. I disagree.
Litigants and trial judges h'ave been dealing with this problem on a case-by-case basis since insurance first came on the scene. Thus far, I have heard of no gross inequities resulting from our leaving the matter to the discretion of the trial judge. I am confident that a trial judge is in a far better position than we to judge which of the above alternatives will best serve the ends of justice in a given case. The principal opinion’s interpretation of Rule 81.09 displaces the informed judgment of the trial judge and substitutes in its place an arbitrary rule. I do not believe the Court contemplated this result when it adopted Rule 81.09 nor do I believe the terms of the rule require the conclusion reached. Because of my firm belief that one should not try to fix a thing that is working, I would quash the writ.