Hartvedt v. Maurer
| Decision Date | 11 April 1949 |
| Docket Number | 41065,41066 |
| Citation | 220 S.W.2d 55,359 Mo. 16 |
| Parties | Andrew Hartvedt, Plaintiff, v. A. J. Maurer, Respondent. Malvina Hartvedt et al., Appellants, A. J. Maurer, Respondent, v. Fred Snider et al., Defendants, Malvina Hartvedt et al., Appellants |
| Court | Missouri Supreme Court |
Rehearing Denied May 9, 1949.
Appeal from Platte Circuit Court; Hon. Fred Maughmer Judge.
Affirmed.
During the pendency of a motion to set aside a judgment in a suit to quiet title, the movant filed an ejectment suit against the plaintiff in the other action. Both parties died and petitions for revivor and substitution of parties filed in the respective actions more than a year later were held to have been properly denied. Although Sec. 1042 R.S. 1939 was in force at the time of the respective deaths, the one year period provided by Sec. 22 (a)(3) Civil Code as modified by Rule 3.08 (a) controls. The shortening of the period of limitation does not impair the constitutional rights of the appellants.
Walter J. Gresham for appellants.
(1) Revivor is not barred by any limitation statute. If the new Code was intended to shorten the time for revivor in cases where the parties were dead more than a year before its effective date, then it would be unconstitutional as destroying vested rights. Stephens v. St. Louis Natl. Bank, 43 Mo. 385; Blum v. N.Y. Life Ins. Co., 197 Mo. 513, 95 S.W. 317; Ruecking Constr. Co. v. Withnell, 269 Mo. 546, 191 S.W. 685; Murphy v. Limpp, 347 Mo. 249, 147 S.W.2d 420; Cranor v. School District, 151 Mo. 119, 52 S.W. 252. (2) The Supreme Court having construed retroactive laws to be unconstitutional, unless saving clause gives reasonable time after its effective date for the exercise of vested rights, the Legislature is presumed to have enacted this law with knowledge of such judicial construction. State ex rel. Conkling v. Sweaney, 270 Mo. 685, 195 S.W. 714. (3) There is a presumption that the Legislature did not intend to enact an absurd law, which would be the case if it limited revivors to one year after death in cases where parties had been dead more than one year before the effective date of the law. State ex rel. American Mfg. Co. v. Koeln, 278 Mo. 28, 211 S.W. 31. (4) Interpreting the law as limiting revivor to one year after the effective date amounts to legislation by judicial construction, in violation of established rules of law. State v. Plotner, 283 Mo. 83, 222 S.W. 767; Elsas v. Montgomery Elevator Co., 330 Mo. 596, 50 S.W.2d 130. (5) By its express terms, the new Code applies only to cases in which death should occur after the effective date, not to those in which death had occurred previous thereto. Laws, 1943, p. 353, sec. 22 (a) (1) and (3). (6) The new Code expressly provides that it shall not govern further proceedings in pending cases where its application would not be feasible or would work injustice, as would be the result if it should result in barring vested rights. Laws, 1943, p. 353, sec. 3. (7) Revivor in the cases at bar is governed only by the former code, and the applications therefor were timely. R.S. 1939, sec. 1042.
John W. Coots and David R. Clevenger for respondent.
(1) The right to revive the motion is purely statutory. Wilson v. Darrow, 223 Mo. 520, 122 S.W. 1077; Carter v. Decker, 199 S.W.2d 48. (2) Appellants had no right to revive under the new code since the death of the deceased parties occurred more than one year prior to the petition to revive. Wormington v. City of Monett, 204 S.W.2d 264; Laws, 1943, sec. 22, p. 364. (3) Appellants had no right to revive under the provision of the old Code of Civil Procedure, Sec. 1042, R.S. 1939, since this section had been expressly repealed. Laws of 1943, sec. 1, p. 356. (4) The action of the Legislature in repealing Sec. 1042, R.S. 1939, was constitutional. Spitcaufsky v. Hatten, 182 S.W.2d 86; 53 C.J.S., sec. 2, pp. 907-908; 16 C.J.S., Constitutional Law, sec. 266, p. 680; sec. 4186, p. 868; sec. 615, p. 1237; Falvey v. Hicks, 286 S.W. 385. (5) The action of the trial court in denying the petition to revive was not an abuse of its discretion under the provisions of the Laws of 1943, page 353, Section 3. 5 C.J.S., sec. 1583, p. 472, sec. 1586, p. 477.
Bradley, C. Dalton and Van Osdol, CC., concur.
February 4, 1930, A. J. Maurer filed a suit against Fred Snider, Andrew Hartvedt and others to determine title to certain real estate in Platte County. At the September 1930 term of court judgment by default was rendered adjudging title to be in Maurer. Within three years from rendition of said judgment Hartvedt filed motion, based on Sec. 1267 R.S. 1939, Mo. RSA Sec. 1267, to set aside the judgment and that he be given permission to answer and defend his claim. The motion to set aside was continued from term to term. Hartvedt died July 15, 1943; on November 24, 1947, Malvina Hartvedt, widow of Andrew Hartvedt, deceased, and other heirs, filed in said cause their petition to revive Hartvedt's petition (cause) to set aside the judgment rendered in 1930 adjudging title to be in Maurer, and asked that they be substituted as plaintiffs or movants in said petition to set aside. June 7, 1948, the petition for revivor was denied and the Hartvedt heirs appealed. This appeal is No. 41,066.
In 1938 Andrew Hartvedt, defendant in the above mentioned suit to determine title, filed suit in ejectment against Maurer to recover possession of the same real estate that was involved in Maurer's suit to determine title. The ejectment suit never came to trial. Maurer died March 19, 1943; on November 24, 1947, the heirs of Hartvedt filed in the ejectment suit their petition for revivor and asked that they be substituted as plaintiffs therein. And they asked that if the heirs of Maurer did not enter their appearance, then that scire facias issue to them returnable to the next term of court. June 7, 1948, the petition for revivor in the ejectment suit was denied and the Hartvedt heirs appealed. This appeal is No. 41,065. The appeals were consolidated.
The heirs of Maurer successfully resisted the revivors sought and hereinafter we refer to them as respondents and to the heirs of Hartvedt as appellants. No suggestion of death was made in either the suit to determine title or in the suit in ejectment until November 24, 1947, when the petitions for revivor were filed, and since revivor and substitution of parties were not sought within one year after the death of Hartvedt and Maurer, respondents contend that revivor is barred under Sec. 22(a) (3) of the new civil code. Laws 1943, p. 364, Mo. RSA Sec. 847.22(a) (3). On the other hand appellants contend that since the new code did not become effective until January 1, 1945 (Sec. 3, Laws 1943, p. 357, Mo. RSA Sec. 847.3), the matter is governed by Sec. 1042 R.S. 1939, Mo. RSA Sec. 1042.
Sec. 22(a)(1) provides that "If a party dies and the claim is not thereby extinguished, the court shall on motion order substitution of the proper parties . . ." Sec. 22(a)(3) provides: "If the death occurs prior to final judgment or after final judgment and before appeal and substitution or motion therefor is not made within 1 year after the death, the action shall be dismissed as to the deceased party; if death occurs after appeal and before final determination thereof and substitution on motion therefor is not made within one year after the death, the appeal shall be dismissed as to the deceased party."
Sec. 1042 R.S. 1939, Mo. RSA Sec. 1042, provides:
Respondents do not claim the causes to determine title and in ejectment were extinguished upon the death of Hartvedt and Maurer, but they say that Sec. 1042 upon which appellants rely was specifically repealed by the new code. Sec. 1, Laws of 1943, p. 356, Mo. RSA Sec. 847.1. But in answer to this appellants say that if Sec. 22(a)(3) of the new code be construed to shorten the time for revivor and substitution of party or parties where the right thereto had vested prior to the effective date of the new code, as is the case here, would deprive them of such vested right and runs counter to the retrospective provision of Sec. 13, Art. I of the Constitution. It is this point that gives appellate jurisdiction of these causes to the supreme court. Sec. 3, Art. V, Constitution.
Here is the question: Is the one year limitation in Sec. 22(a)(3) of the new code applicable to appellants' petition for revivor of...
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