Bostick v. McIntosh

• Decision Date: 03 June 1919
• Docket Number: No. 20219.,20219.
• Citation: 213 S.W. 456,278 Mo. 395
• Parties: BOSTICK v. McINTOSH.
• Court: Missouri Supreme Court

213 S.W. 456

278 Mo. 395

BOSTICK v. McINTOSH.

No. 20219.

Supreme Court of Missouri, Division No. 2.

June 3, 1919.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by F. A. Bostick against J. S. McIntosh. Judgment of dismissal, and plaintiff appeals. Affirmed.

It appears from the abstract of record that plaintiff sued defendant in the circuit court of Jackson county, Mo., on August 27, 1914, to recover $10,000 damages, but we are not advised as to the nature of the transaction between said parties, as only a small portion of the petition is set out in the record.

While the action was pending against defendant, and on April 8, 1915, plaintiff filed in said cause a statement in writing, advising the court that defendant had died in December, 1914; that Marion N. McIntosh, defendant's wife, was executrix of his estate, in process of administration in the probate court of said county, at Kansas City, Mo. He asked that the cause be revived against Marion N. McIntosh, executrix of the estate of J. S. McIntosh, deceased, and that she be cited to show cause why the case should not stand revived against her as executrix of said estate.

Notice was given to the former attorney of defendant that the above motion would be called up for disposition on April 12, 1915.

On said April 12, 1915, the following order was made:

"F. A. Bostick v. J. S. McIntosh.

"Now on this day on application of plaintiff it is ordered by the court that summons be issued to Marion N. McIntosh as executrix of the estate of the defendant, J. S. McIntosh, to show cause, on or before the 4th day of the next term of this court, why this cause shall not stand revived against her as executrix of the defendant. It appears from the clerk's record that the summons ordered to be issued never was issued; hence never was served on Mrs. McIntosh, the executrix."

It is alleged in the abstract that James R. Creel, a member of the firm of Moore & Creel, had entire charge of this cause, and died in Kansas City, Mo., on May 2, 1916.

On June 6, 1916, Ross B. Gilluly, attorney for the executrix, filed a special motion to dismiss for want of jurisdiction. Counsel for the executrix appeared specially for that purpose only, for no other purpose, and disclosed to the court that defendant died December 17, 1914; that his death was suggested by plaintiff on April 8, 1915; that on April 12, 1915, an order was entered by the court, directing that summons issue to Marion N. McIntosh, as executrix of the estate of John S. McIntosh, deceased, to show cause, on or before the 4th day of the next term, why the case should not stand revived against her. Counsel in the special motion represented that said executrix had never been served with summons, as required by law, and that more than three terms of the circuit court, in which the cause was pending, had passed since the suggestion of the death of said defendant herein; that said circuit court, by reason thereof, had no further jurisdiction of the cause. She therefore asked that the case be dismissed.

Counsel for plaintiff waived service on the special motion of executrix, which was taken up by the court on June 12, 1916, but before it was passed on by the court, to wit, on June 15, 1916, a writ of summons was issued, which said writ, with the return of the sheriff thereon, reads as follows:

"Circuit Court—Summons.

"Revival.

"The State of Missouri, to the Sheriff of Jackson County—Greeting:

"You are hereby commanded to summon Marion N. McIntosh as executrix of estate of J. S. McIntosh, deceased, to appear in the circuit court of Jackson county, Mo., at the county courthouse in Kansas City, on the second Monday in September next, and show cause, if any she has, why the action hereafter named shall not be revived in her name as representative and successor of J. S. McIntosh, deceased, and unless she show good cause, within the first four days of said term, against the order of revivor heretofore made by our said court, in the cause wherein F. A. Bostick et al. are plaintiffs and J. S. McIntosh is defendant, the action shall stand revived.

"And that you then and there have this writ and that you certify how you execute the same.

"Witness, James B. Shoemaker, Clerk of the Circuit Court, with the seal thereof affixed, at office in Kansas City, Mo., this 15th day of June, A. D. 1916.

"James B. Shoemaker, Clerk,

"[Seal.] By D. M. McClanahan, Deputy.

"Executed this writ in Jackson county, Mo., on the 15th day of June, 1916, by delivering a copy of this writ to the within named defendant, Marion N. McIntosh.

                           "Edward N. Winstanley, Sheriff
                              "By n. R. Scovill, Deputy."
                

On June 23, 1916, said special motion to dismiss was sustained, and judgment entered accordingly. Plaintiff duly appealed the cause to this court, and assigns as error the action of the trial court in dismissing said cause.

Ed. E. Aleshire, of Kansas City, for appellant.

Ross B. Gilluly, of Kansas City, for respondent.

RAILEY, C. (after stating the facts as above).

1. It is contended by appellant that the trial court committed error in dismissing his case under the circumstances heretofore stated. In passing upon this question, it will be necessary to consider the legal effect of section 1921, R. S. 1909, which reads as follows:

"In all cases where the representatives of a deceased or disabled party shall not be made Parties according to the provisions of this article, on or before the third term after the suggestion of the death or disability, the action shall abate as to such party and the interest of his representatives or successor therein; and the cause shall proceed in favor of or against the survivors. In case there be no surviving plaintiff or defendant, the suit shall be dismissed."

The above was known in the Revision of 1899 as section 761; in the Revision of 1889 as section 2201, and in the General Statute of 1865, page 679, as section 6. In the latter section, the word "chapter" is used instead of "article." In all other respects, there has been no change in the law relating to this subject since 1865.

In Ranney v. Bostic, 15 Mo. loc. cit. 218, Judge Ryland, in discussing the subject before us, construed the law of 1845, which reads as follows:

"No scire facias for the purpose of substituting a person as plaintiff or defendant in any suit in the place of the original plaintiff or defendant, shall be sued out after the expiration of the third day of the second term next after the term in which the death or disability of the original party shall be stated upon record."

Judge Ryland, after setting out said section, said:

"It was by virtue of this provision that the court sustained the motion to abate this suit. In this case there was no necessity for the motion to abate, for by the statute above quoted the scire facias could not issue after the lapse of the time mentioned, and the necessary consequences was the abatement of this suit."

The above language is clear and explicit as to the construction which should be given section 1921, R. S. 1909.

In Rutherford v. Williams' Legal Representatives, 62 Mo. loc. cit. 254, Judge Rough construed the law, in its present form, was follows:

"The statute, in relation to the abatement of suits and their revival, is in the nature of a special statute of limitations, and,...