De Hatre v. Ruenpohl

• Decision Date: 26 August 1937
• Citation: 108 S.W.2d 357,341 Mo. 749
• Parties: Mary DeHatre, Administratrix of the Estate of Louis DeHatre, Appellant, v. Julius H. Ruenpohl
• Court: Missouri Supreme Court

108 S.W.2d 357

341 Mo. 749

Mary DeHatre, Administratrix of the Estate of Louis DeHatre, Appellant, v. Julius H. Ruenpohl

Supreme Court of Missouri

August 26, 1937

Appeal from Circuit Court of City of St. Louis; Hon. Julius R Nolte, Judge.

Transferred to St. Louis Court of Appeals.

A G. Schumacher and Clarence G. Baxter for appellant.

(1) The finding, decree and judgment of the court is against the law and the evidence and for the wrong party, and the court should have sustained plaintiff's motion for judgment on the pleadings. (a) Plaintiff's petition pleads, and the evidence shows, the creation of a constructive trust, arising ex maleficio and ex delicto. Leahy v Witte, 123 Mo. 207; Thierry v. Thierry, 298 Mo. 25; Philips v. Hardenburg, 181 Mo. 463; Richardson v. Champion, 143 Mo. 538; Phillips v. Jackson, 240 Mo. 310. (b) The Statute of Limitations never runs in favor of a trustee ex maleficio and against a cestui que trust. Elliott v. Machine Co., 236 Mo. 568; Case v. Goddman, 250 Mo. 115; Case v. Sipes, 280 Mo. 118; Johnson v. United Ry. Co., 243 Mo. 300. (c) The court is limited to issues contained in the pleadings. Munford v. Sheldon, 9 S.W.2d 907; Mark v. Cooperage Co., 204 Mo. 262, 103 S.W. 25. (2) The court erred in failing to make a special finding of facts as to the land disclaimed in defendant's amended answer and adjudging costs against plaintiff, and so failed to decide all the issues in the case. Failure of court to render judgment for plaintiff for that portion of property admitted by the answer to belong to plaintiff and to tax defendant with costs was error. Littleton v. Harris, 69 Mo.App. 596; 10 R. C. L., p. 555, sec. 338. The court erred in dismissing plaintiff's bill. (a) Judgment of dismissal in action to determine title, failing to determine interest of parties, is error. Arcadia Timber Co. v. Harris, 285 S.W. 428. (b) A court of equity, having acquired jurisdiction of the subject matter and the persons of the parties to the action, should retain jurisdiction until complete justice is done between the parties, and will not remit them to additional actions to determine a complete settlement of the entire controversy. Real Estate Sav. Inv. Co. v. Collonious, 63 Mo. 295; Buckingham v. Williams, 9 S.W.2d 839; Munford v. Sheldon, 9 S.W.2d 911; Bentrup v. Johnson, 14 S.W.2d 541.

A. E. L. Gardner for respondent.

Plaintiff's action is not one to determine title under the statute; but is characterized by plaintiff as "an action to declare a trust and for accounting and injunction." Elliott v. Delaney, 217 Mo. 26; Woolridge v. La Crosse Lbr. Co., 291 Mo. 248; Sec. 1520, R. S. 1929.

OPINION

Ellison, J.

We are confronted at the outset with the question whether we have jurisdiction of this appeal. The case as tried in the circuit court was to establish a constructive trust in real estate and for an accounting of some $ 5000 or $ 6000 in rents and profits collected therefrom by the respondent. The trial court made a general finding for the respondent and dismissed the then appellant's bill, whereupon he appealed. Undoubtedly, on the record brought up this court had jurisdiction of the appeal under Section 12, Article VI of the Constitution and Section 5 of the Amendment of 1884, because the controversy directly involved the title to real estate. [Loewenstein v. Queen Ins. Co., 227 Mo. 100, 130, 127 S.W. 72, 85; Nettleton Bank v. Estate of McGauhey, 318 Mo. 948, 2 S.W.2d 773.]

But after the appeal was lodged here, and before submission, the sole plaintiff and appellant died. His death was suggested and the cause revived in the name of his widow and administratrix, Mary DeHatre, all with the written consent of respondent. She appeared and the case has been briefed on all the issues mooted at the trial below including those involving the title to real estate. But an intestate's real estate descends to his heirs, not to his personal representative, Jones v. Peterson, 335 Mo. 242, 256, 72 S.W.2d 76, 84; and the heirs of the appellant have not been made parties and brought in though more than three terms of this court have elapsed since his death was suggested. These facts raise several serious questions.

The controversy over the accounting of rents and profits alone cannot give us appellate jurisdiction because the amount there in dispute does not exceed $ 7500. [Sec. 3, Const. Amendment of 1884; Sec. 1914, R. S. 1929, Mo. Stat. Ann., p. 2587.] So we must determine whether the part of the case involving the title to real estate is still before us in such sense as to keep our jurisdiction alive. This question turns on two others: Under the foregoing facts does our jurisdiction now depend solely on the state of the record when the cause left the trial court; and if not, has the respondent waived the failure to bring the appellant's heirs into the case, by consenting to a reviver in the name of the administratrix only and by briefing the case on the issues involving title to real estate?

Where a cause of action is triable de novo on appeal the rules of abatement governing the action in the trial court prevail. [1 Am. Jur., sec. 67, p. 63; 1 C. J. S., sec. 128, p. 176.] In equity, on the death of a party "a pending suit does not abate if it is of a nature that survives; rather it is merely suspended until the representative of the deceased party, or other person who succeeds to his interest, is made a party to the litigation." [1 Am. Jur., sec. 57, p. 59; 1 C. J. S., sec. 117, p. 168; sec. 160, p. 212.] That is the general law on the subject. But we have statutes in this State governing the matter, which have always been treated as applicable to equity cases. [Posthlewaite v. Ghiselin, 97 Mo. 420, 10 S.W. 482; Maguire v. Moore, 108 Mo. 267, 277, 18 S.W. 897, 900; Reed v. Colp, 213 Mo. 577, 581, 112 S.W. 255, 256; State ex rel. Potter v. Riley, 219 Mo. 667, 674, 118 S.W. 647, 649; Edwards v. Watson, 258 Mo. 631, 637, 167 S.W. 1119, 1120; Carter v. Burns (Mo. Div. 1), 61 S.W.2d 944; Id., 332 Mo. 1128, 1138, 61 S.W.2d 933, 938.]

Section 1056, Revised Statutes 1929 (Mo. Stat. Ann., p. 1339), provides: "If all the appellants or plaintiffs in error die after the appeal is taken, or writ of error is brought, and before judgment rendered thereon, the executors or administrators of the last surviving plaintiff or appellant or the heirs and devisees of the plaintiff and appellant, in cases where they would be entitled to bring writs of error, may be substituted for such plaintiffs, and the cause shall proceed at their suit." Section 1058, Revised Statutes 1929 (Mo. Stat. Ann., p. 1340), provides: Persons may be substituted as parties, or compelled to become parties, in cases pending in the Supreme Court in like time and manner and with like effect as provided for in original suits in circuit courts."

Respecting actions in the circuit court that survive or continue (of which the instant suit is one), Section 891, Revised Statutes 1929, (Mo. Stat. Ann., p. 1173), provides: "In case of the death, . . . of a party, the court, on or before the third term after the suggestion of such death, . . . may, on motion, order the action to be continued by or against the representative or successor of such party in interest." Section 892 (Mo. Stat. Ann., p. 1177), says: "After the suggestion of the death, . . . the order may be made on the motion of the adverse party, or of the representatives or successor of the party who died, . . . and the names and capacities of the representatives or successor shall be stated in the order." Section 893 (Mo. Stat. Ann., p. 1178), provides: "If the order is made upon the voluntary appearance and by consent of the parties, the action shall forthwith stand revived." The section contains further provisions requiring the order to be made conditionally and summons to be issued if the order is not made on voluntary appearance and consent.

The next section, the important one here, is Section 896 (Mo. Stat. Ann., p. 1179), which provides: "In all cases where the representatives of a deceased . . . party shall not be made parties according to the provisions of this article, on or before the third term after the suggestion of the death, . . . the action shall abate as to such party and the interest of his representatives or successor therein; and the cause shall proceed in favor of or against the survivors. In case there be no surviving plaintiff or defendant, the suit shall be dismissed."

Posthlewaite v. Ghiselin, supra, 97 Mo. 420, 10 S.W. 482, was a suit to enjoin the enforcement of a judgment which had been recovered against one Carson after his death. The original action, to recover the price of cotton sold, was pending and undetermined when he died. His death was suggested but no steps were taken to revive the cause until six terms of court had elapsed. Then summons was issued and served on his executor, who appeared, filed answer to the merits and defended, the result being a substantial judgment against him, which was affirmed by this court, and the United States Supreme Court. On an attempt to enforce the judgment as a demand in the probate court, the injunction suit followed. The contention was that the judgment was void because the action had not been revived within three terms after the suggestion of death, in obedience to the statute. This court held the judgment was not void or open to collateral attack because the point had not been raised in the original action culminating in the judgment. The reasoning of the opinion was that the executor could and did waive the statute by appearing and defending; and that he had authority to do this, since he could have done the same thing if the action had been brought directly against him as such executor after his testate's death.

This...