Postlethwaite v. Ghiselin

Citation10 S.W. 482,97 Mo. 420
PartiesPosthlewaite v. Ghiselin, Appellant
Decision Date04 February 1889
CourtUnited States State Supreme Court of Missouri

Appeal from St. Louis City Circuit Court.

This is a suit to enjoin the enforcement of a demand allowed and classified in the probate court.

The facts disclosed by the petition (so far as need be recited for the purposes of the decision) are as follows:

An action was brought, in 1863, in the St. Louis circuit court by Robt. Ober and others against John B. Carson to recover the price of thirty-four bales of cotton alleged to have been sold and delivered to Carson. The action was pending and undetermined when Carson died. His death was suggested at the October term, 1866. No steps were taken to revive the cause until February, 1868, during which time six regular terms of the circuit court elapsed. A summons to show cause against revival was then issued and served on the executor, who, at the April term, 1868, appeared and filed an answer to the merits of the action, denying the plaintiff's allegations, but not pleading the statute of limitations or other affirmative defense.

The litigation resulted in a judgment against the executor of Carson for a large sum, which was affirmed on appeal by the supreme courts of Missouri and of the United States. That judgment (having been allowed and classified in the probate court against said estate) was assigned to one of the present defendants. It is sought in this preceding to enjoin its enforcement on the ground that, as the original action was not revived against the executor within three terms after the suggestion of death, the circuit court had no jurisdiction over the executor, and that it was his duty to plead such abatement of the action as well as the bar of limitation to the plaintiff's demand.

The circuit court overruled a demurrer to the petition. Defendant declining to plead further, a perpetual injunction against the enforcement of the probate allowance in question was decreed. Defendant appealed.

Reversed and remanded.

Given Campbell for appellant.

(1) The petition did not state facts sufficient to constitute a cause of action. The court had jurisdiction of the subject-matter and of the parties, and heard the cause on its merits, and judgment was rendered, which our law defines to be a final determination of the rights of the parties to the action. R S. sec. 3672; Grignon's Lessees v. Astor, 2 How 338. (2) Neglect to plead defenses that might have been pleaded at the trial of the cause, and which, if pleaded, would have defeated the action, constitutes no ground for opening the judgment by a bill in equity. Hotel Ass'n, v. Parker, 58 Mo. 327, 329; Carolus v. Koch, 72 Mo. 645; Payne v. O'Shea, 84 Mo. 129, 133, 138. (3) The right to abate the suit of Ober v. Carson was a defense, and, like all defenses, should have been plead by the executor; and, by not pleading it, he waived it. A scire facias was not the commencement of a new suit, but virtually a call or rule upon the debtor's representative to show cause why the cause should not proceed against him. It was issued in this case, and, though it is sued after the third term, the executor did not choose to set that up as a cause, but appeared and filed his answer to the merits. A voluntary appearance is equivalent to personal service of summons. Chrystal v. Henry, 88 N.Y. 293. The appearance of a defendant is a waiver of the issuing of a summons, or any defect in its issuing or service, and any defect in publication. Work's Indiana Prac. sec. 222; Little v. Harrington, 71 Mo. 39; Ranney v. Bostick, 15 Mo. 215. Pleas in abatement are waived if not pleaded. Shepard v. Graves, 14 How. 505; Fordyce v. Hathorn, 57 Mo. 120; Ripstein v. Ins. Co., 57 Mo. 86; Moody v. Deutsch, 85 Mo. 214; Hotchkiss v. Thompson, 1 Morris (Iowa) 156, 438; Hastings v. Bolton, 1 Allen (Mass.) 529.

H. A. Haeussler, Leonard Wilcox and E. T. Farish for respondent.

(1) "The statute in relation to the abatement of suits and their revival, is in the nature of a statute of special limitations, and, after the expiration of the time therein limited, no writ of scire facias can issue; and it is very questionable whether heirs, devisees or creditors would be bound by any appearance on the part of an administrator after a lapse of such period. No provisions are made for extending the time so limited under any circumstances, the language of the statute seems to be imperative, and we are not now prepared to say that there are any exceptions to its requirements." Rutherford v. Williams, 62 Mo. 253; Beardslee v. Morgner, 73 Mo. 24. (2) The suit having abated by the force of the statute (R. S. 1879, sec. 3668), the court lost jurisdiction over the parties to the suit, and all proceedings thereafter were null and void. And a judgment being void for want of jurisdiction over the parties, the exhibition and classification of such judgment in the probate court did not constitute a valid allowance of the claim against the decedent's estate. Wernse v. McPike, 76 Mo. 252. (3) The original judgment in the case of Ober v. Carson's Adm'r, being void, and incapable of being reversed on appeal, the circuit court, in this proceeding, had power to enjoin it and vacate proceedings under it. Freeman on Judg. sec. 497; Bornshien v. Fink, 13 Mo.App. 120.

OPINION

Barclay, J.

I. The principal question here presented is whether the lapse of three court terms, after the suggestion of defendant Carson's death, deprived the circuit court of jurisdiction to proceed further with the cause, in view of the subsequent appearance of the executor to the merits of the action.

The cause of action in the original case was an ordinary one upon contract for the purchase and sale of cotton. It was such as by its nature survived against the executor under our laws. R. S., 1879, secs. 96, 97. Had there been no action pending when Carson died, it would have been clearly within the power of his executor to enter appearance voluntarily to a new action of the same nature as the old, at the date when his appearance was actually entered in the pending action. At the date when he filed his answer as executor two years had not elapsed since the death of Carson, as the petition in this case shows. Hence the special administration limitation would then have been no bar to an ordinary presentation of plaintiff's demand to the executor. The circuit court at that time certainly had jurisdiction of the subject-matter of the pending action, by which is meant that that court had...

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