Essey v. Bushakra

• Decision Date: 10 June 1924
• Docket Number: No. 25300.,25300.
• Citation: 304 Mo. 231,263 S.W. 405
• Parties: ESSEY v. BUSHAKRA et al.
• Court: Missouri Supreme Court

263 S.W. 405

304 Mo. 231

ESSEY v. BUSHAKRA et al.

No. 25300.

Supreme Court of Missouri, Division No. 1.

June 10, 1924.

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

Action by Mussey Essey against John Bushakra and others. From an order, plaintiff appeals. Reversed, with directions.

A. N. Gossett and Stubenrauch & Hartz, all of Kansas City, for appellant.

German & Hull, of Kansas city, for respondents Salima Bushakra and C. W. German.

SMALL, C.

Appeal from the circuit court of Jackson county. The case was here before (299 Mo. 147, 252 S. W. 459), 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 $2,800, 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 $2,800 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 reinstated on the docket of this court." From this action of the court the plaintiff again appealed to this court.

II. The action of the court was obviously erroneous. The statute (section 1506, R. S. 1919) provides as follows:

"Appeal or writ [of error] shall not abate upon death of party.—If there be several appellants or plaintiffs in error, and one or more of them die after the cause is submitted, or if there be several appellees or defendants in error, one or more of whom shall die after the cause is submitted, the appeal or writ of error shall not thereby abate, but in either of such cases such death shall be suggested on the record, and the cause shall proceed at the suit of the surviving appellant or plaintiff in error, or against the surviving appellee of defendant in error, as the case may be."

Under this statute it has often been held that a cause need not be revived against the representatives of one...