Davis v. Morgan

• Decision Date: 18 February 1889
• Citation: 10 S.W. 881,97 Mo. 79
• Parties: DAVIS v. MORGAN.
• Court: Missouri Supreme Court

10 S.W. 881

97 Mo. 79

DAVIS v. MORGAN.

Supreme Court of Missouri.

February 18, 1889.

ABATEMENT AND REVIVAL — DEATH OF PLAINTIFF PENDING APPEAL.

Under Rev. St. Mo. 1879, § 97, excepting actions for personal injuries to plaintiff from those actions which may be brought against an administrator after his intestate's death, such a case will be stricken from the docket, where defendant has died pending appeal.

Appeal from circuit court, Scotland county; BEN E. TURNER, Judge.

Action by Lee Davis against Robert G. Shaw for personal injuries. Defendant died pending appeal by plaintiff from a judgment of nonsuit, and John A. Morgan, by consent, was made a party.

McKee & Sayne, for appellant. Smoot & Pettingill and Shelton & Dysart, for respondent.

SHERWOOD, J.

This action was brought for personal injuries caused to plaintiff by the fall of a house owned by Robert G. Shaw. Such proceedings were had in the circuit court as compelled the plaintiff to take a nonsuit, and he has appealed here. During the present term, the death of the defendant has been suggested, and by consent the administrator has been made a party to the action.

The merits of this cause cannot be discussed, since the action was for personal injuries, and judgment for the defendant, who, since appeal taken, has died. The action, by reason of defendant's death, abated, and could not be revived in the name of his administrator. Rev. St. 1879, §§ 96, 97 The maxim actio personalis moritur cum persona applies, and our statute, so far as concerns this case, is only declaratory of the common law. Stanley v. Bircher, 78 Mo. 245; 1 Chit. Pl. 77, and cases cited. Inasmuch as the action has abated, the cause will be stricken from the docket.

All concur.