Crawford v. Chicago, Rock Island & Pacific Railway Company

• Decision Date: 27 January 1902
• Parties: CRAWFORD v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY
• Court: Missouri Supreme Court

66 S.W. 350

171 Mo. 68

CRAWFORD v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY

Supreme Court of Missouri

January 27, 1902 ^[*]

Motion to Revive Cause and to Substitute Administrator as Appellant.

Motion sustained.

Brown & Dolman against the motion.

(1) The circuit court, by the allowance of the appeal, lost jurisdiction of the case and its order reviving it in the name of the administrator was without jurisdiction, and void. State ex rel. v. Gates, 143 Mo. 68; Burgess v O'Donoghue, 90 Mo. 299; Ladd, Patrick & Co. v Couzins, 35 Mo. 513; DeKalb Co. v. Hixon, 44 Mo. 341; Bank v. Allen, 68 Mo. 474; Brill v Meek, 20 Mo. 359; Oberkoetter v. Luebbering, 4 Mo.App. 481; State ex rel. v. Campbell, 25 Mo.App 635; State ex rel. v. Anthony, 65 Mo.App. 543; State v. Musick, 7 Mo.App. 597; State v. McO'Blenis, 21 Mo. 272; Houser v. Andersch, 61 Mo.App. 15. Not only must the name of the plaintiff be changed, but the suit must be continued in this court by the personal representative of the deceased plaintiff in the manner provided in article 8 of chapter 8, Revised Statutes 1899. This can only be done by the voluntary appearance and by consent of the parties, or by the order to show cause as therein provided. R. S. 1899, p. 279; Jeffries v. Flint, 55 Mo. 31. (2) This is not an action that survives to the personal representative nor to any one else. It is an action for personal injury to the intestate and is expressly excepted by section 97, Revised Statutes 1899, from the category of actions which survive to the personal representative. Davis v. Morgan, 97 Mo. 79; Stanley v. Bircher's Exec., 78 Mo. 425; 1 Chitty on Pleading (9 Amer. Ed.), 68-448; 2 Addison on Torts (Wood's Ed.), sec. 1326; Woehrlin v. Schaffer, 17 Mo.App. 442; Melvin v. Evans, 48 Mo.App. 421; Martin v. Railroad, 151 U.S. 697; Murphy v. McGrath, 79 Ill. 594; Moore v. Bennett, 65 Barb. 338. (3) In this suit a verdict for plaintiff was returned and on motion was set aside by the court and a new trial granted. The appeal was taken without supersedeas bond from the order setting aside the verdict and granting a new trial. The appeal does not have the effect to vacate the order granting a new trial, and to restore the verdict, so that the plaintiff's claim of damages for tort is not only not merged in a judgment, but he is without either verdict or judgment. Burgess v. Hitt, 21 Mo.App. 313; Freeman on Judgments, sec. 328; Railroad v. Atkinson, 17 Mo.App. 484; State ex rel. v. Woodson, 128 Mo. 517; State ex rel. v. Dillon, 96 Mo. 56; Lewis v. Railroad, 59 Mo. 495. (4) The very fact that the administrator wants to prosecute the cause for the purpose of obtaining a judgment, demonstrates that the claim has not yet been merged in a judgment so as to become assets of the administrator, and this is the real test of his right to interfere. Hunt v. Conrad, 47 Minn. 558; Rice v. Stone, 1 Allen 566; Lawrence v. Martin, 22 Cal. 173; Brooks v. Hanford, 15 Abb. Pr. 342; Benjamen's Exec. v. Smith, 17 Wend. 208; Murphy v. McGrath, 79 Ill. 594; More v. Bennett, 65 Barb. 338; Davis v. Morgan, 97 Mo. 79; Woehrlin v. Schaffer, 17 Mo.App. 442; Melvin v. Evans, 48 Mo.App. 421.

James W. Boyd for the motion.

(1) The respondent claims that by the allowance of the appeal the circuit court not only lost jurisdiction of the case, but also of its record in the case. In support of this statement it cites a number of cases wherein it is held that at a term subsequent to the term at which an appeal is taken, the court has no jurisdiction. None of these cases hold that the court may not, after an appeal, and during the same term, make all orders necessary to complete the record, unless the case of State v. Musick, 7 Mo.App. 597, cited by respondent, does, and it has been overruled lest it be so understood. Carter v. Prior, 78 Mo. 222. That the court at the term wherein the appeal is taken has the right, after the appeal is allowed, to make all orders necessary to complete the bill of exceptions, is both elementary and statutory. R. S. 1899, sec. 728; State v. Dodson, 72 Mo. 283; Shaw v. Shaw, 86 Mo. 564; Carter v. Prior, supra. (2) This case was tried at the January term, 1901. Plaintiff obtained verdict and judgment for $ 2,000. At the same term (March 6, 1901) respondent's motion for a new trial was sustained and plaintiff appealed. Believing his bill of exceptions could be filed in a few days, he filed a short-form transcript in this court. Hicks v. Hoos, 44 Mo.App. 571. He died before his bill of exceptions was filed, and during the January term of court, 1901. After his death, and on May 4, 1901, during the January term of the court, Gabbert, his administrator, entered his appearance in the case; the respondent then also entered its appearance, and by agreement made by Gabbert, administrator, and the respondent, and entered of record, the plaintiff was by order of the court granted leave to file bill of exceptions during the next May term of said court. How could the bill of exceptions have been filed without these preliminary orders? This court had no jurisdiction to make the orders necessary to complete the record of the circuit court. Each court must make its own record. Those orders were made upon the voluntary appearance and consent of both parties. They were made for the purpose of enabling plaintiff to file his bill of exceptions, so as to complete the record. Our courts hold that after order of appeal the record may be completed. State ex rel. v. Campbell, 25 Mo.App. 635, cited by respondent so holds, as well as the cases hereinabove cited by appellant. (3) The other contention is that death, after verdict and judgment for plaintiff, and before the bill of exceptions is filed, abates the suit. All the authorities are the other way. Those cited by respondent are not in point. They are cases where the party died before trial. In this case verdict and judgment were rendered for plaintiff, while he was living. The motion for a new trial and the order sustaining it merely suspended the judgment, until that order is set aside. State ex rel. v. Stratton, 110 Mo. 430; Lewis v. Railroad, 59 Mo. 496; Horner v. Nicholson, 56 Mo. 220. Our statute provides for rendering judgment on verdict after death of party. R. S. 1899, sec. 762; Horner v. Nicholson, 56 Mo. 220.

GANTT, J. Burgess, C. J., Sherwood, Robinson, Brace and Valliant, JJ., concur; Marshall, J., dissents.

OPINION

In Banc

GANTT J.

On October 8, 1901, the first day of the present term, Lewis C. Gabbert, the administrator of Thomas Crawford, whose name appears in the transcript filed as plaintiff and appellant, filed his motion to substitute his name as appellant in lieu of his intestate, who died after taking the appeal in this case, and that motion was denied October 26, 1901, and at the present term.

On November 5, 1901, he moved the court to set aside its order denying him the right of substitution and leave was given to file briefs for and against this motion, and the motion is now submitted on these briefs, and the copies of record of the circuit court filed.

The facts of record are that on December 18, 1900, Thomas Crawford filed his petition in the circuit court of Buchanan county, alleging that by the negligence of defendant he received personal injuries and was damaged in the sum of $ 2,000. At the January term, 1901, defendant filed its answer, and the said Crawford his reply. The cause came on for trial at the January term, 1901, and resulted in a verdict for said plaintiff (Crawford) for $ 2,000, and judgment was rendered accordingly on February 12, 1901.

Afterwards on February 15, 1901, the defendant moved the court for a new trial, alleging among other grounds that the court erred in giving instruction numbered 3, asked by plaintiff, for the reason that the same is contrary to and in violation of article 2 of the Constitution of Missouri; "that the court erred in holding that the amendment of section 28 of article 2 of the Constitution of Missouri proposed by the Fortieth General Assembly, providing that in the trial by jury of all civil cases in courts of record three-fourths of the jury concurring may render a verdict, had been lawfully submitted to the people of the State of Missouri and adopted by them at the general election in the year 1900 and had become a valid provision of the Constitution of Missouri, and because said amendment was not submitted to a vote separately but was included in and voted upon in said election with another amendment with reference to verdicts of juries in courts not of record, and because said amendment was not submitted to a vote of the people of this State in the manner provided by sections 1 and 2 of article 15 of the Constitution of Missouri in that said proposed amendment was not published in a newspaper in each county in the State for four consecutive weeks next preceding the said general election of 1900." Thereafter on March 6, 1901, and at the same term, this motion was sustained and a new trial awarded defendant, because the circuit court was of opinion that the constitutional amendment providing that three-fourths of a jury concurring could render a verdict in the case was unconstitutional, and upon the further ground that two separate amendments were submitted together in the ballot as voted for by the people.

The grounds of the motion that the verdict was against the weight of the evidence and that the verdict was excessive, were withdrawn by defendant by mutual consent.

To the action of the court in granting a new trial the said plaintiff Crawford then and there duly excepted, and then and there, on March 6, 1901, filed his affidavit for appeal from the order granting a new trial, and his appeal was allowed and a transcript of the judgment and the order allowing the...