Essey v. Bushakra

• Decision Date: 10 June 1924
• Docket Number: 25300
• Citation: 263 S.W. 405,304 Mo. 231
• Parties: MUSSEY ESSEY, Appellant, v. JOHN BUSHAKRA et al
• Court: Missouri Supreme Court

263 S.W. 405

304 Mo. 231

MUSSEY ESSEY, Appellant, v. JOHN BUSHAKRA et al

No. 25300

Supreme Court of Missouri

June 10, 1924

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

Reversed (with directions).

A N. Gossett and Stubenranch & Hartz for appellant.

(1) No revivor was necessary in this action. Defendant John Bushakra was merely one of a number of defendants. The sole defendants contesting plaintiff's claim were the defendants Salima Bushakra and Charles W. German, trustee, who were only claiming a mortgage as being valid and prior to plaintiff's judgment. There being other defendants a revivor was not necessary to a continuation of the suit in the Supreme Court and to the trial court's carrying out the mandate and judgment of the Supreme Court, directing judgment to be entered for plaintiff, as prayed in his petition. Sec. 1506, R. S. 1919; Reed v. Colp, 213 Mo. 577, 581; St. Louis v. Brinckwirth, 204 Mo. 280; Hunleth v. Leahy, 146 Mo. 408; Prior v Kiso, 96 Mo. 303; Sargent v. Railway Co., 114 Mo. 348; Reineman v. Larkin, 222 Mo. 156; Central Savings Bank v. Shine, 48 Mo. 467; Mead v. Mead, 1 Mo.App. 254. (2) This being an action in equity the trial court had authority under the law to enter up judgment for plaintiff in accordance with the mandate of this court and order the property sold and proceeds applied on plaintiff's judgment. The trial court took care of any rights which any heir of John Bushakra, not a party to the suit, might have, by providing that the residue, if any, be brought into court for final distribution. The judgment being properly entered as of the time of the submission in this court as against John Bushakra, bound all his heirs, whether or not they happened to be already express parties to the suit, as some of them were. All heirs in such a case occupy the position of acquirers of title pending the suit, whether by gift, purchase or descent. Authorities above cited.

German & Hull for respondents Salima Bushakra and C. W. German.

(1) At the time of John Bushakra's death, the only judgment in this cause was that entered by the court below, which was in his favor, so without a revivor, that judgment must stand. This position is entirely in keeping with the statutory provisions. The statutes provide that a cause of action does not abate by the death of a party, if the cause of action survive, but that after the suggestion of death the court may order the action continued against the representatives or successors of such deceased party. If such order is made upon the voluntary appearance of the parties, the action is forthwith revived, and if not, provision is made for summons to be issued against the person to be made a party. It is further provided that if the representatives of a deceased party are not made parties on or before the third term after the suggestion of death, the cause of action shall abate as to such party, and the interest of his representatives or successors therein. See Wilkinson v. Thom, 194 Mo.App. 173. (2) It is essential that we keep in mind the fact that under the common law, the death of a party to a suit, whether served with process or not, permanently abated the suit, and there was no revivor against his representatives or successors. Cole v. Parker-Washington Co., 276 Mo. 220. (3) A cause of action cannot be revived on the death of a party until there has been a suggestion of death. Sargeant v. Rowsey, 89 Mo. 617; Murphy v. Redmond, 46 Mo. 317; Wilkinson v. Thom, 194 Mo.App. 173; Gamble v. Daugherty, 71 Mo. 599; Lopp v. Prather, 176 S.W. 476; Crawford v. Railway, 171 Mo. 68. (4) When a party litigant dies no further steps can be properly taken in the cause until action is taken to bring in the dead party's representatives by a scire facias or the representatives voluntarily appear. Murphy v. Redmond, 46 Mo. 317. (5) There can be no question about the law relative to the death of one of the litigants, before submission of the case; that is to say, if the plaintiff or defendant dies during the progress of the trial, or before being served with process, the judgment is absolutely void. This point is conclusively decided in the Cole Case, supra. So therefore where the statute makes it imperative that, when the death of appellant or appellee occurs, the death be suggested in the court where the case is pending. If this is not done no proceedings can be had which in any way or in any manner affects the interest or estate of the one who dies. Sargeant v. Rowsey, 89 Mo. 617; Murphy v. Redmond, 46 Mo. 317. Rentschler v. Jamison, 6 Mo.App. 135; Weller Mfg. Co. v. Eaton, 81 Mo.App. 657; Childer v. Schantz, 120 Mo. 305; In Re Young's Estate, 116 P. 1060; Life Assurance Co. of America v. Flassett, 102 Ill. 315; Bivens v. Henderson, 86 N. E. (Ind.) 426; Kager v. Vickery, 49 L. R. A. 153, and note. (6) If one of the plaintiffs in an action dies it is error to proceed to judgment without taking the statutory steps to bring in the successors in interest. Gamble v. Daugherty, 71 Mo. 599. The same rule of law applies to one of the defendants. Cole v. Parker-Washington Co., 276 Mo. 220. (7) Upon the death of one of several respondents after the cause is submitted in the appellate court, such death must be suggested. If the cause is reversed and remanded the heirs or legal representatives of the deceased person should be made parties in the trial court, and brought in by summons. Sec. 1506, R. S. 1919; Prior v. Kiso, 96 Mo. 303; Reed v. Colp, 213 Mo. 577, 581. See also: Reineman v. Larkin, 222 Mo. 156, 162; Edwards v. Watson, 258 Mo. 637; Remmers v. Remmers, 239 S.W. 509; Jeffries v. Flint, 55 Mo. 29.

Small, C. Lindsay, C., concurs.

OPINION

SMALL

This case was here before (299 Mo. 147) and was brought by plaintiff against John Bushakra and Salima Bushakra, his wife, and C. W. German, Trustee, to set aside a note held by said defendant Salima for $ 2800, secured by deed of trust on certain real estate in Kansas City, and also to set aside the conveyance of said property from said John Bushakra to her and by her to others who executed to her said note and deed of trust, as in fraud of plaintiff's rights as a judgment creditor of said John Bushakra.

The lower court held against plaintiff and that said $ 2800 note and deed of trust were a valid incumbrance on said property as against the plaintiff, but on appeal to this court we reversed said judgment, holding that said note and deed of trust were fraudulent and void as against plaintiff, as claimed by him, and directed the lower court to enter judgment for plaintiff subjecting said property to the plaintiff's judgment, subject to the dower of said Salima in said real estate. Our mandate was as follows:

"We therefore reverse the judgment, with directions to the lower court to set aside its judgment herein, and enter up judgment for plaintiff, as prayed in his petition, but reserving to the defendant Salima Bushakra her right of dower in said property, as the wife of defendant John Bushakra, and that said property be sold to satisfy plaintiff's judgment, or so much thereof as remains unpaid as the property of said John Bushakra, subject to his said wife's right of dower."

After our mandate reached the circuit court and on August 27, 1923 that court entered judgment for plaintiff, as commanded by our said mandate. Said judgment also recited that plaintiff "now suggests the death of defendant John Bushakra on or about the 20th day of May, 1923, after the hearing and submission of said cause on January 5, 1923, in the Supreme Court on plaintiff's appeal herein." Within four days after entry of said judgment, the defendants, Salima Bushakra and C. W. German, trustee in said deed of trust, filed a motion for new trial and in arrest of judgment, which was, on October 20, 1923, sustained "for the reason that there has been no revivor of this cause as to defendant John Bushakra. It is therefore ordered by the court that the decree rendered in this cause be, and same is, set aside and for naught held and that this cause be and the same is hereby re-instated on the docket of this court." From this action of the court the plaintiff again...