Millar v. St. Louis Transit Co.

• Decision Date: 23 December 1908
• Citation: 216 Mo. 99,115 S.W. 521
• Parties: MILLAR v. ST. LOUIS TRANSIT CO. et al.
• Court: Missouri Supreme Court

115 S.W. 521

216 Mo. 99

MILLAR v. ST. LOUIS TRANSIT CO. et al.

Supreme Court of Missouri, Division No. 1.

December 23, 1908.

Rehearing Denied January 14, 1909.

1. APPEAL AND ERROR (§ 1)—RIGHT OF APPEAL.

Appeals are purely statutory; no right of appeal existing at common law.

2. DEATH (§ 29) — ACTION — ABATEMENT ON DEATH OF BENEFICIARY.

Rev. St. 1899, § 96 (Ann. St. 1906, p. 369), provides that an action maintainable against a wrongdoer may be brought after the death of the person injured by his executor or administrator. Section 97 (Ann. St. 1906, p. 370) provides that the preceding section shall not extend to actions for injuries to the person of the intestate of any administrator. Section 762 (Ann. St. 1906, p. 743) provides that, if either party die after verdict and before judgment, the court may within one term after such verdict enter final judgment in the name of the original parties. Held, that where, after a verdict for plaintiff in an action for wrongful death of her husband was rendered, and pending an appeal from a judgment granting a new trial, plaintiff died, her administrator could not be made a party and the action be revived in his name.

Appeal from St. Louis Circuit Court; O'Neill Ryan, Judge.

Action by Ada J. B. Millar against the St. Louis Transit Company and another. From a judgment granting a new trial, plaintiff appealed and died pending the appeal, and her administrator applied to have the action revived in his name. Application denied, and appeal stricken from docket.

Earl M. Pirkey and Lon O. Hocker, for appellant. Boyle & Priest and F. S. Whitelaw, for respondents.

GRAVES, J.

This is one branch of a cross-appeal taken by plaintiff in the case of Ada J. B. Millar, Plaintiff, v. St. Louis Transit Company and United Railways Company, Defendants. The facts material to this appeal by Mrs. Millar appear in the appeal taken by the St. Louis Transit Company, in Case No 13,118, just decided. 114 S. W. 945, except the record shows there was introduced in evidence a certain lease from the United Railways Company to the St. Louis Transit Company and two ordinances of the city of St. Louis, relative thereto. This lease and these ordinances are fully described and discussed in the recent case of Moorshead v. United Railways Company, first decided by the St. Louis Court of Appeals in 119 Mo. App. 541, 96 S. W. 261, and later by this court in 203 Mo. 121, 96 S. W. 261, 100 S. W. 611. Reference is made to these two opinions for the full description of the several instruments. To outline these here again would be but a useless undertaking and one profitable neither to the bench nor the bar. On this appeal the United Railways Company denies any liability to Mrs. Millar for the death of her husband, and further this defendant contends that, inasmuch as Mrs. Millar died pending her appeal, as against it, the suit has abated, and there is no authority in law to authorize the further prosecution thereof by her administrator. The administrator has asked that this case be revived in his name, and this application was taken with the case. Upon the record before us there are these two questions here not involved in the appeal of the St. Louis Transit Company, i. e.: (1) Was there ever any action against or any liability upon the United Railways Company? (2) If so, then did the same abate by plaintiff's death? This is all that need be stated in addition to the facts stated in the other appeal.

The most orderly manner of taking these two questions, will be in the inverse order, for, even if we concede there was an original cause of action, yet, if such has abated, by reason of the death of the plaintiff, the abatement should be first determined, and, if it should be found that it had in fact abated, further discussion would be unnecessary. Counsel for plaintiff predicate their right to have the executor of Mrs. Millar substituted on what is stated or can be read into section 762, Rev. St. 1899 (Ann. St. 1906, p. 743). This section reads: "After a verdict shall be rendered in any action, and after an answer or confession in any suit brought, if either party die before judgment be actually entered thereon, the court may, within one term after such verdict or answer, enter final judgment in the name of the original parties." This is an action in tort, and it is not seriously insisted that, had the plaintiff, Mrs. Millar, lost in the trial in the court nisi and then died pending her appeal, that her executor could revive the suit here. Appeals are purely statutory. No right of appeal existed at the common law. The statute relied upon does not attempt to prescribe what shall be the situation of a case upon appeal. The statute itself is but declaratory of the common law in courts nisi. 1 Cyc. p. 76. The word "verdict," as therein used, refers to a verdict upon which no judgment has been entered in the trial court, and the section provides that in certain contingencies a judgment may be entered upon such verdict after the death of a party to the action. This is not the case here. From the abstract of record before us it appears that on April 17, 1905, the verdict against both defendants was returned, and on the same day judgment was entered in favor of the plaintiff for the amount of the verdict and against both the defendants for the amount of the verdict. All this was whilst plaintiff was living. Later, on April 20, 1905, motions for new trial and in arrest of judgment were filed, and on July 7th, following, the motions were overruled as to the St. Louis Transit Company and sustained as to the United Railways Company. Plaintiff was at the time living, and from the judgment granting a new trial to the United Railways Company, she duly appealed. Prior to Acts 1891, p. 70, there was no right to appeal from such an order. This act reads:

"Section 1. That section 2246 of the Revised Statutes of 1889 be and the same is hereby repealed and the following new section enacted in lieu thereof, to be known as section 2246:

"Sec. 2246. Any party to a suit aggrieved by any judgment of any circuit court, in any civil cause from which an appeal is not prohibited by the constitution, may take his appeal to the court having appellate jurisdiction from any order granting a new trial, or in arrest of judgment, or dissolving an injunction, or from any interlocutory judgment in actions of partition which determine the rights of the parties, or from any final judgment in the case, or from any special order after final judgment in the case; but a failure to appeal from any action or decision of the court before final judgment shall not prejudice the right of the party so failing to have the action of the trial court reviewed on an appeal taken from the final judgment in the case."

There have been subsequent amendments, but they do not go to the point in question. They simply add to the act of 1891, but do not in any way affect the specific right to appeal, in this particular situation, i. e., from an order granting a new trial. Without this act of 1891, when the trial court vacated its judgment and set aside the verdict, the plaintiff was simply left as if no trial had been had in her case. In other words, she had a cause of action pending, but no adjudication thereof. If, under those circumstances she had died, the cause of action died with her. The question is, although not argued or discussed in the briefs, does this act of 1891 change the situation? We must also bear...