Carter v. Decker
| Citation | 199 S.W.2d 48,239 Mo.App. 776 |
| Parties | Caroline Carter, Transferee of Frank Carter, Appellant, v. Russell Decker, Respondent |
| Decision Date | 21 January 1947 |
| Court | Court of Appeal of Missouri (US) |
Appeal from the Circuit Court of the City of St. Louis; Hon. Robert J. Kirkwood, Judge.
Affirmed.
Jesse E. Bishop for appellant.
I. The Court erred in sustaining defendant's motion for a directed verdict, on the ground that the suit was improperly revived in the name of Caroline Carter, Transferee, because (a) Division No. 8 of the Circuit Court had no right to review the absolute order of revival entered on May 22, 1945 by Division No. 1 of said Circuit Court. Defendant should have appealed from that order. State ex rel. Allen v Buckner, 226 Mo.App. 807, 47 S.W.2d 256; State ex rel. Mueller v. Buckner, 207 Mo.App. 48, 229 S.W. 392; White v. Hoffman, 331 Mo. 115, 52 S.W.2d 830; Overall v. Traction Co., 112 Mo.App. 224. (b) No evidence was offered by defendant that the conditional order of revivor entered on August 26, 1942, and the absolute order of revivor entered on May 22, 1945, were entered without warrant of law and there is a presumption that they were lawfully entered and that the Court proceeded without error. White v. Hoffman, 331 Mo. 115, 52 S.W.2d 830. (c) Defendant filed a return to the writ of scire facias setting up his objections to the revivor, which was presented and submitted, and saved no objections to, nor sought a rehearing on the absolute order of revivor of May 22, 1945. (d) The absolute order of revivor of May 22, 1945, was rightfully entered, because: (1) It was made on motion of Caroline Carter, Transferee. Mo. R. S. A. 1042, 1044; Overall v. St. Louis Traction Co., 112 Mo.App. 224. (2) It was timely made, the conditional order of revivor and the issuance of the writ of scire facias being had within the third term after suggestion of death. State ex rel. Bank v. Buzard, 351 Mo. 746, 173 S.W.2d 915. (e) Defendant entered his appearance generally to the cause by entering into a stipulation to waive a jury. Mackey v. R. R. Co., 84 S.W. 61, 185 Mo. 348; State ex rel. Brown (Mo. App.), 23 S.W.2d 1092, 224 Mo.App. 844. (1) The question of jurisdiction herein invoked is jurisdiction over the person and not over the subject matter and defendant could waive his objections by entering his appearance generally. Posthlewaite v. Ghiselin, 97 Mo. 420; Ferris, Adms., v. Hunt, 20 Mo. 464. II. The Court erred in not sustaining plaintiff's motion for a directed verdict, plaintiff having made a prima facie case on the evidence presented in this, to-wit: (a) That plaintiff held title to the notes as Transferee because the notes were inventoried on the estate of Frank Carter, deceased, and all assets in that estate were ordered transferred to plaintiff as part of her widow's allowance. (b) The notes were introduced in evidence and as copies thereof were attached to the petition and defendant did not deny their execution, the execution thereof were admitted. Laws Mo. 1943, Code Civil Procedure, Sec. 56. (c) The notes were presumed to have been issued for a valuable consideration and plaintiff's predecessor in title is presumed to have been a holder in due course and defendant offered no testimony of any kind. Mo. R. S. A., Secs. 3040, 3074.
Louis B. Sher and Joseph Necessenfeld for respondent.
(1) The court below properly sustained defendant's motion for a directed verdict and entered judgment for defendant. The suit was improperly revived in the name of Caroline Carter, a stranger to the proceedings. No written motion stating the facts showing her alleged interest as transferee was ever filed praying for a revival. Division 1 of the Circuit Court was without authority to enter a conditional order of revivor upon a mere oral motion made by a stranger, the alleged transferee. The absolute order of revival made thereafter, fourteen terms after the suggestion of death and over the defendant's objection was void. Wilson v. Darrow, 223 Mo. 520, 122 S.W. 1077; Bacon's Missouri Practice, Vol. 1, p. 318; Mo. R. S. A., Secs. 1042, 1044. (2) There was no waiver by defendant with respect to the improper revivor of the action. Revivor of action is purely statutory and unless the statutes are followed the court has no jurisdiction to order a revivor more than three terms after the suggestion of death. This cannot be waived. Moreover, defendant raised the jurisdictional objection at the earliest opportunity and continually thereafter. Under the New Code of Civil Procedure, effective January 1, 1945 (prior to entry of the absolute order of revivor) entering into trial does not constitute a waiver. Sec. 66, Code of Civil Procedure. (3) The court below properly sustained defendant's motion for a directed verdict for the further reason that the pleadings put the ownership of the notes in issue and plaintiff failed to prove her title thereto. The notes were payable to the order of Robert E. Rose and plaintiff wholly failed to prove an indorsement by Robert E. Rose. The purported indorsement on the notes did not prove themselves. Nance v. Hayward, 183 Mo.App. 217, 170 S.W. 429; National Bank of Commerce v. Pennington, 42 Mo.App. 355; Dunlap v. Kelly, 105 Mo.App. 1, 78 S.W. 664; Mo. R. S. A., Sec. 3074.
This suit was originally begun by one Frank Carter who filed his petition in the Circuit Court of the City of St. Louis on August 19, 1940, wherein he sought to recover from defendant, Russell Decker, on three promissory notes executed by said defendant. The petition was in three counts. The first count alleged that defendant executed a note on March 4, 1930, in the sum of $ 45, payable to the order of Robert E. Rose eighteen months after the date thereof. The second count alleged that defendant executed a note on March 4, 1930, also in the sum of $ 45, payable to the order of Robert E. Rose twenty-four months after the date thereof. The third count alleged defendant executed a note on March 4, 1930, in the sum of $ 1500, payable to the order of Robert E. Rose two years after the date thereof. Each count alleged that the note therein mentioned provided for interest from maturity at eight per cent per annum and that it was endorsed by Robert E. Rose without recourse on him, and that plaintiff was the holder thereof for value before maturity and without notice.
On December 3, 1940, defendant filed an answer which contained a general denial of each and every allegation of the petition and, for further answer, alleged that the note sued on by plaintiff in each of the three counts of plaintiff's petition was made by defendant solely for the accommodation of the plaintiff and for no other purpose; that each said note was wholly without consideration; that defendant was merely a straw party and that plaintiff took said notes with notice of that fact; that the payee, Robert E. Rose, was also a straw party, and that plaintiff was an original party to each of said notes, and that plaintiff was not a holder in due course and not entitled to recover thereon. Defendant's answer was in three counts, answering separately the three counts of plaintiff's petition.
Before the trial of the cause, and while the action was pending, Frank Carter died, and, on February 11, 1942, by an order made and entered of record, the death of plaintiff was suggested by the attorney for plaintiff and, "on oral motion, the cause ordered to stand revived in the name of Caroline Carter, administratrix of the estate of Frank Carter, deceased, unless good cause be shown" to the contrary. A writ of scire facias was ordered to issue for defendant directed to the Sheriff of the City of St. Louis and returnable to the April Term, 1942. The writ was issued as directed. On June 9, 1942, the court made and entered of record an order: On June 12, 1942, the order of June 9, 1942, was corrected by an order of the court, as follows: "Order of June 9, 1942, reviving cause in name of Caroline Carter, executrix of the estate of Frank Carter, deceased, corrected to read, Caroline Carter, administratrix of the estate of Frank Carter, deceased."
On August 26, 1942, the court made and entered of record an order:
The above proceedings of August 26, 1942, are shown on page seven and continue over onto page eight of the regularly numbered pages of the transcript, after which the proceedings on page eight go on and show that: "On oral motion, death of plaintiff again suggested, thereupon Caroline Carter, widow of etc., suggests to the court, that she by an order of the Probate Court, is transferee of the above cause, and orally moves the court to revive said cause in her name, and cause revived in the name of Caroline Carter, transferee of etc., unless good cause be shown."
On said August 26, 1942, a writ of scire facias was ordered to issue for defendant, directed to the sheriff and returnable to the September Term, 1942. Said writ was issued and, on September 1, 1942, the sheriff made his return thereon, after which, on September 16, 1942, defendant filed his return to...
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