Johnson v. Frank

• Citation: 191 S.W.2d 618,354 Mo. 767
• Decision Date: 03 December 1945
• Docket Number: 39101
• Parties: Lela Johnson, Appellant, v. Archer K. Frank, Executor of the Estate of Walton C. Frank, Deceased, and Shryock Realty Company, a Corporation
• Court: United States State Supreme Court of Missouri

191 S.W.2d 618

354 Mo. 767

Lela Johnson, Appellant, v. Archer K. Frank, Executor of the Estate of Walton C. Frank, Deceased, and Shryock Realty Company, a Corporation

No. 39101

Supreme Court of Missouri

December 3, 1945

Rehearing Denied January 7, 1946.

Appeal from Jackson Circuit Court; Hon. Ben Terte, Judge.

Affirmed.

Clarence C. Chilcott and Walter A. Raymond for appellant.

(1) This was an action pending at the time of the death of the defendant, Walton C. Frank, within the meaning of the revival statutes. Secs. 876, 1042, 3670, R.S. 1939; State ex rel Brown v. Wilson, 216 Mo. 215, 115 S.W. 549; State ex rel. Methudy v. Killoren, 229 S.W. 1097; State ex rel. Bair v. Producers Gravel Co., 341 Mo. 1106, 111 S.W.2d 521; Alexander v. Haffner, 323 Mo. 1197, 20 S.W.2d 896; Hays v. Dow, 166 S.W.2d 309; Mayne v. Michael Real Estate Co., 180 S.W.2d 809. (2) This suit was instituted in the county where the cause of action arose, where the plaintiff resided, and where the defendant Walton C. Frank, had valuable real property and could reasonably be expected to come. Sec. 871, R.S. 1939; State Bank of Cowgill v. Tucker, 192 Mo.App. 139 180 S.W. 457; Krueger v. Walters, 179 S.W.2d 615; Wente v. Shaver, 169 S.W.2d 947, 250 Mo. 1143. (3) This action was properly and legally entitled to be revived against the administrator of the deceased defendant, Walton C. Frank. Secs. 1042, 1044, 1045, R.S. 1939; Burg v. Knox, 334 Mo. 329, 67 S.W.2d 96. (4) Plaintiff had a legal right to amend her petition to make the defendant Shryock Realty Company an additional party defendant. Secs. 972, 975, R.S. 1939; Jensen v. Hinderks, 338 Mo. 459, 92 S.W.2d 108; Robinson v. Field, 342 Mo. 778, 117 S.W.2d 308; Wente v. Shaver, 350 Mo. 1143, 169 S.W.2d 947; State ex rel. Porter v. Falkenhainer, 12 S.W.2d 481; Fears v. Riley, 148 Mo. 49, 49 S.W. 836; Dorrance v. Dorrance, 242 Mo. 625, 148 S.W. 94. (5) Defendants entered their general appearance and waived any question of the court's jurisdiction over their persons by filing motions attacking the jurisdiction of the court over the subject matter and the merits of the action. Hill v. Barton, 194 Mo.App. 325, 188 S.W. 1105; Merchants' Savs. & L. Assn. v. Ancona Realty Co., 229 Mo.App. 714, 78 S.W.2d 470; State ex rel. Auchincloss, Parker & Redpath, Inc., v. Harris, 349 Mo. 190, 159 S.W.2d 799; Moseley v. Victory Life Ins. Co., 226 Mo.App. 566, 45 S.W.2d 119. (6) Both parties defendant entered their general appearance by requesting and obtaining continuances and permission of court to plead out of time. Baisley v. Baisley, 113 Mo. 544, 21 S.W. 29; Crawford v. Chicago, R.I. & P. Ry. Co., 171 Mo. 68, 66 S.W. 350; Moseley v. Victory Life Ins. Co., 226 Mo.App. 566, 45 S.W.2d 119; Mertens v. McMahon, 334 Mo. 175, 66 S.W.2d 127; 3 Am. Jur., p. 794, sec. 21; 6 C.J.S., p. 26, sec. 12(5). (7) The judgment of the court sustaining the plea in abatement of defendant Shryock Realty Company is erroneous and void, as said issue had previously been ruled against said defendant by Divisions III and II of said circuit court and had become res adjudicata. The same is true as to defendant executor whose motions to strike amended petition and for judgment on his plea in abatement had been previously overruled and had become final. Baisley v. Baisley, 113 Mo. 544, 21 S.W. 29; Hall v. Wilder Mfg. Co., 316 Mo. 812, 293 S.W. 760; State v. Randazzo, 318 Mo. 761, 300 S.W. 755; St. Louis v. Chas. F. Querl Lbr. Co., 277 Mo. 167, 210 S.W. 21; State ex rel. L.J. Mueller Furnace Co. v. Buckner, 207 Mo.App. 48, 229 S.W. 392; Ellis v. Starr Piano Co., 49 S.W.2d 1078.

W. F. Wilkinson and Roy K. Dietrich for respondent Shryock Realty Company; Gossett, Ellis, Dietrich & Tyler of counsel.

(1) The plaintiff having at all times been a resident of Kansas City, Missouri, and Walton C. Frank having at all times been a resident of Nodaway County, Missouri, and never having been found in Jackson County, Missouri, and no service ever having been made upon him, and he never having entered his appearance, with his death the court could never obtain jurisdiction and the proceeding in Jackson County, Missouri, was the same as the bringing of no suit and abated with the death of Walton C. Frank and could not be revived. Secs. 871, 876, 1042, 1045, 3670, R.S. 1939; 1 C.J.S. 165; State ex rel. Thomas v. Daues, 283 S.W. 51, 45 A.L.R. 1466; Heil v. Rule, 327 Mo. 84, 34 S.W.2d 90; Walker v. Ross, 71 S.W.2d 124; Jordan v. Light Co., 335 Mo. 319, 73 S.W.2d 205; Yates v. Casteel, 329 Mo. 1011, 49 S.W.2d 68; Andrews v. Buckley, 77 Mo. 428; Newman v. Weinstein, 230 Mo.App. 794, 75 S.W.2d 871; Mertens v. McMahon, 115 S.W.2d 180; Mertens v. McMahon, 334 Mo. 175, 66 S.W.2d 127, 93 A.L.R. 1285; Conrad v. McCall, 205 Mo.App. 640, 226 S.W. 265; State ex rel. Nicholson v. McLaughlin, 170 S.W.2d 705; Brackett v. Brackett, 61 Mo. 221; Krueger v. Walters, 179 S.W.2d 615; Wente v. Shaver, 350 Mo. 1143, 169 S.W.2d 947. (2) The entire proceeding on the part of the plaintiff endeavoring to bring in Shryock Realty Company as a party defendant was a nullity because: This action against Walton C. Frank abated with his death and could not be revived, and he being the sole defendant, the only order that the court could enter was one of dismissal. Upon the suggestion of death of the sole defendant and the order upon his representative to appear and show cause why the case should not be revived, upon the representative appearing and showing such cause why the suit should not be revived, further action must be suspended until the action is revived and the court had no authority to bring in the Shryock Realty Company as a defendant until there had been an order substituting the executor and the revival of the case against him. Sec. 1044, R.S. 1939; In re Thomasson, 159 S.W.2d 626; 47 C.J. 121; State ex rel. Minn. Mut. Life Ins. Co. v. Denton, 229 Mo. 187, 129 S.W. 709; Meyer v. Oregon Interurban Ry. Co., 271 S.W. 865; Hall v. School District, 36 Mo.App. 21; Courtney v. Sheehy, 38 Mo.App. 290; Clements v. Gleanwell, 40 Mo.App. 589; Jordan v. Railway Co., 105 Mo.App. 446; Mertens v. McMahon, supra; Conrad v. McCall, supra; 1 Am. Jur. 105; Murphy v. Redmond, 46 Mo. 317; Gamble v. Daugherty, 71 Mo. 509; Cole v. Parker-Washington Co., 276 Mo. 220, 207 S.W. 749. (3) Shryock Realty Company at all times objected to the jurisdiction of the trial court, appearing specially, at all times attacking the jurisdiction and at no time entered its appearance. Murphy v. Doniphan Tel. Co., 147 S.W.2d 616; State ex rel. Rakowsky v. Bates, 286 S.W. 420; Crabtree v. Aetna Life Ins. Co., 111 S.W.2d 103, 341 Mo. 1173; Evansville Grain Co. v. Mackler, 80 Mo.App. 186; State ex rel. Auchincloss, Parker & Redpath v. Harris, 159 S.W.2d 799, 349 Mo. 190; Mertens v. McMahon, 66 S.W.2d 127, 334 Mo. 175, 93 A.L.R. 1285; Detmer, Bruner & Mason v. New York Central Railroad, 80 S.W.2d 222, 229 Mo.App. 702; Greer v. Railroad, 173 Mo.App. 276, 158 S.W. 740; Walker v. Ross, supra. (4) The plea to the jurisdiction or plea in abatement, as raised by Shryock Realty Company in its second amended answer, calls for the hearing of evidence and testimony and there had never been such a hearing previous to the trial on the plea in abatement, so that the ruling upon the motions going to matters appearing on the face of the record was no adjudication of the matters presented and tried at the hearing on the plea in abatement. State ex rel. Macon Creamery Co. v. Mix, 222 Mo.App. 426, 7 S.W.2d 290; Squaw Creek Drain. District v. Turney, 235 Mo. 80, 138 S.W. 12; 1 Van Fleet, Former Adjudication, 119; 21 C.J.S., pp. 121, 173, 176; Sheldon v. Wabash R. Co., 105 F. 785.

Allan M. Fisher, Elton L. Marshall, Douglas Stripp and Livingood & Wrightman for respondent Archer K. Frank, executor; Watson, Ess, Groner, Barnett & Whittaker of counsel.

(1) No suit was "brought" within the meaning of Sec. 3670 R.S. 1939, during the lifetime of Walton C. Frank; therefore, the cause of action abated and there was nothing to revive. Henry v. Gibson, 35 Mo. 570; Conrad v. McCall, 205 Mo.App. 640, 226 S.W. 265; Mertens v. McMahon, 115 S.W.2d 180; Bennett v. Metropolis Pub. Co., 148 S.W.2d 109; State ex rel. Bennett v. Hughes, 348 Mo. 667, 155 S.W.2d 184; Secs. 1012, 3670, R.S. 1939 (2) The element of good faith in the proceedings is at last as vital in "bringing" a suit to avoid abatement as it is in "commencing" one to toll limitations, but that element is wholly lacking in this case. Baker v. Modern Woodmen of America, 140 Mo.App. 619, 121 S.W. 794; Krueger v. Walters, 179 S.W.2d 615; Wente v. Shaver, 350 Mo. 1143, 169 S.W.2d 947; Mertens v. McMahon, supra; Conrad v. McCall, supra; Sec. 871, R.S. 1939; Pitkin v. Flagg, 198 Mo. 646, 97 S.W. 162. (3) Plaintiff could not have prosecuted her case to a conclusion in Jackson County, prior to the death of Walton C. Frank, and she acquired no greater right to do so by virtue of his death. State ex rel. Nicholson v. McLaughlin, 170 S.W.2d 705; Matthews v. Eby, 168 Mo.App. 134, 151 S.W. 470. (4) Suit could not be brought after the death of Walton C. Frank. Shupe v. Martin, 321 Mo. 811, 12 S.W.2d 450. (5) The executor has no power to waive the abatement of the cause of action. Brecht v. Corby, 7 Mo.App. 300; Bank of Skidmore v. Bartram, 142 S.W.2d 657; Cape Girardeau County v. Harbinson, Adm., 58 Mo. 90; Bambrick v. Bambrick, 157 Mo. 423; State ex rel. Lambert v. Flynn, 348 Mo. 525, 154 S.W.2d 52; State ex rel. Dean v. Daues, 321 Mo. 1126, 14 S.W.2d 990; Madison County Bank v. Suman, 79 Mo. 527; Gooldy v. Lavender, 223 Mo.App. 354, 16 S.W.2d 681; 24 C.J. 370, sec. 1035. (6) The proper pleading to be filed by the executor, in response to the scire facias and the summons served with the amended petition, was an answer containing a plea in abatement,...