In re Thomasson
| Decision Date | 13 March 1942 |
| Docket Number | No. 36390.,36390. |
| Citation | 159 S.W.2d 626 |
| Parties | In re THOMASSON. TOWNSEND v. BOATMEN'S NAT. BANK OF ST. LOUIS. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court, Division No. 6; Fred J. Hoffmeister and James M. Douglas, Judges.
Proceeding in the matter of Hugh W. Thomasson, alleged to be a person of unsound mind, by Elmira Townsend against the Boatmen's National Bank of St. Louis, administrator, pendente lite de bonis non of the estate of Hugh W. Thomasson, deceased. An order vacating the judgment for costs against the estate of the alleged insane person and adjudging the costs against informant was reversed by the Court of Appeals, 119 S.W.2d 433, and the case was certified to the Supreme Court by a dissenting judge of the Court of Appeals.
Judgment of trial court reversed and cause remanded with directions.
Taylor R. Young, Stephen A. Boggiano, and Cullen, Storckman & Coil, all of St. Louis, for appellant.
James V. Frank and Chas. Claflin Allen, Jr., all of St. Louis, for respondent.
This appeal from an order vacating a judgment for costs in an insanity proceeding was certified here by a dissenting judge of the St. Louis Court of Appeals for the reason that he deemed the majority opinion in conflict with a prior Supreme Court decision. In re Thomasson. Mo.App., 119 S.W.2d 433.
The case having reached this court in that manner it is our duty to "rehear and determine said cause or proceeding, as in case of jurisdiction obtained by ordinary appellate process; * * *." Const.Mo., Am. Art. 6, § 6, 1884; Farmers' Exchange Bank v. Farm & Home Sav. & Loan Ass'n, 332 Mo. 1041, 61 S.W.2d 717.
On October 6, 1931 Elmira Townsend, as informant, instituted an insanity proceeding against Hugh W. Thomasson in the Probate Court of the City of St. Louis. The proceeding was transferred to the circuit court where Thomasson filed a plea to the jurisdiction and a plea in abatement. The substance of the pleas was that he had not received proper notice of the proceedings and that he was not found in the City of St. Louis when he was served with process. These pleas were tried before a jury and found against Thomasson. The trial lasted ninety days and the costs of the proceeding totaled $2,763.40.
Thomasson filed a motion for new trial which, on the informant's motion, was stricken from the files. The basis of the motion to strike was that the verdict of the jury on the pleas did not decide all the issues in the case and there was no final judgment from which he could appeal.
After the motion for new trial was stricken the case was set for trial on the merits on January 17, 1933. When neither Thomasson nor his attorney appeared the court appointed Forrest P. Tralles as counsel to represent him and the case was continued to February 6, 1933, on which date the death of Hugh W. Thomasson was suggested and the proceeding was again passed to March 13, 1933.
On that date the court entered a judgment reciting that the informant, Elmira Townsend, and Ella F. Bolles had been appointed administratrices of the estate of Hugh W. Thomasson, deceased, and as such entered the appearance of the estate and of themselves as administratrices in the insanity proceeding. The court found that suggestion of Thomasson's death had been filed by R. Shad Bennett and that Thomasson had died in Arkansas January 28, 1933. The court then found that Elmira Townsend had acted in good faith in filing the insanity information; that the jury's verdict found him to be a resident of the City of St. Louis and that he had never changed his residence, and, in fact at the time of the institution of the proceeding was a person incapable of changing his residence. The court then ordered the costs and an attorney's fee of $750 to Tralles, taxed against the estate of Thomasson and certified to the Probate Court for payment. The court then entered judgment abating the insanity proceeding.
On October 3, 1933, the Boatmen's National Bank was granted letters of administration pendente lite de bonis non of the estate of Thomasson and filed a motion, § 1267, R.S.Mo.1939, Mo.St.Ann. § 1101, p. 1396, in the Circuit Court of St. Louis, to strike out all of the judgment of March 13, 1933, excepting the finding that Thomasson was dead and that the insanity proceeding against him abate.
The judge then sitting in the circuit court, on his own motion, vacated and set the previous judgment aside. He also found Tralles entitled to a fee of $750 which he taxed as costs. He then ordered all the costs taxed against the informant, Elmira Townsend, and her appeal is from that judgment.
Relying particularly on Sections 1102, R.S.Mo.1939, Mo.St.Ann. § 951, p. 1223; 1408, R.S.Mo.1939, Mo.St.Ann. § 1244, p. 1471 and 1048, R.S.Mo.1939, Mo.St.Ann. § 897, p. 1181, the appellant argues that it was error to set aside the judgment assessing the accrued costs against Thomasson's estate. The appellant's theory is that the pleas in abatement and to the jurisdiction were tried and a verdict returned before his death and consequently it was within the court's discretion to assess the costs against his estate, after his death and even though the insanity proceeding abated or should abate, under the statutes.
Section 1048, R.S.Mo.1939, Mo.St.Ann. § 897, p. 1181 is as follows: "After a verdict shall be rendered in any action, and after an answer of confession in any suit brought, if either party die before judgment be actually entered thereon, the court may, within one term after such verdict or answer, enter final judgment in the name of the original parties."
Section 1102, R.S.Mo.1939, Mo.St.Ann. § 951, p. 1223 provides that where there are several causes of action united in a petition or several issues the court may order separate trials on the various issues. The section then says:
Section 1408, R.S.Mo.1939, Mo.St.Ann. § 1244, p. 1471 is as follows: "When any defendant, in any action, shall plead several matters, any of which shall, upon demurrer joined, be adjudged insufficient, or if a verdict shall be found on any issue in the case for plaintiff, costs shall be given at the discretion of the court."
We are unable to apply these statutes and the cases cited by the appellant to the instant case. There can be no question but that the rule, under § 1048, R.S. Mo.1939, Mo.St.Ann. § 897, p. 1181, is that if a party dies after a verdict has been returned the court may enter a judgment on that verdict. That is the plain and unambiguous meaning of the statute. Horner, Adm'r v. Nicholson, 56 Mo. 220; Cole v. Parker-Washington Co., 276 Mo. 220, 207 S.W. 749; Buchanan v. Rechner, 333 Mo. 634, 62 S.W.2d 1071; State ex rel. Meinhard v. Stratton, 110 Mo. 426, 19 S.W. 803. However, the statute says, in such instances, that the court may enter final judgment "in the name of the original parties." This the court did not do but entered judgment specifically against "the estate of Hugh W. Thomasson," and hence the appellant's case does not fit or fall within that statute and consequently, as the St. Louis Court of Appeals observed, we do not pass on what could have been done under the statute but on what was in fact done.
Assuming, even, that a court may enter a judgment for costs though dismissing or abating the cause for want of jurisdiction (Ensworth v. Curd, 68 Mo. 282; State v. Thompson, 81 Mo. 163), yet we are of the opinion that the circuit court had no jurisdiction to enter a judgment for the costs against the estate of Thomasson, after the entry of appearance by the administratrices now representing Thomasson and yet one of them being the informant in the principal proceeding and his adversary in the ninety-day trial on the pleas to the jurisdiction. The parties do not cite us to a statute or a case specifically covering a situation such as we have here. In the first place costs were unknown to the common law and one's right to costs is now wholly dependent on statutory provisions allowing them. And such statutes are strictly construed. 7 R.C.L., § 2, p. 781; Van Trump v. Sanneman, 193 Mo.App. 617, 187 S.W. 124; Ex parte Nelson, 253 Mo. 627, 162 S.W. 167. There being no statute specifically allowing costs in such instances or under such circumstances or in such a manner is sufficient to...
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