Missouri Pac. Ry. Co. v. McCarty

• Decision Date: 04 March 1889
• Citation: 97 Mo. 214,11 S.W. 52
• Parties: MISSOURI PAC. RY. CO. v. McCARTY et al.
• Court: Missouri Supreme Court

11 S.W. 52

97 Mo. 214

MISSOURI PAC. RY. CO. v. McCARTY et al.

Supreme Court of Missouri.

March 4, 1889.

ABATEMENT — INFANCY — GUARDIAN AD LITEM.

1. Where defendant in ejectment died pending suit, and his widow and heirs were served with process before the statute of limitations had become a bar, it is immaterial what irregularities attended the amending of the petition, and the striking out the name of the deceased defendant, and inserting the names of the present defendants.

2. The minor heirs having been duly served with process, and a guardian ad litem having been appointed for them before trial, and in time to plead, the fact that there was a considerable delay in making such appointment was of no consequence.

Appeal from circuit court, Jackson county; J. H. SLOVER, Judge.

Ejectment against Ellen McCarty and others for certain lots in Kansas City. The petition was filed September 23, 1881. Process issued therein against John McCarty, the original defendant, returnable to the October term, 1881, and was duly served. At that term John McCarty appeared, and filed his answer, a general denial. Afterwards, at the April term, 1882, the death of John McCarty was suggested of record. Thereafter, at the same term, and on June 30, 1882, plaintiff filed an amended petition, making appellants, Ellen McCarty, Cora Francis, and Ellen Mary McCarty, sole defendants. The original petition against John McCarty was also amended by striking out his name and inserting the name of appellants as sole defendants, and it was ordered that summons be issued against them, returnable to the next term. On the original petition, as thus amended, summons issued, and was duly served September 22, 1882, returnable to the October term, 1882. Nothing was done in the cause, and no record entry therein was made at the October term, 1882, but at the April term, 1883, appellant Ellen McCarty filed her motion to dismiss the action, on the ground that said action did not survive as against her, and also that it had abated by reason of the discontinuance at the October term, 1882. Afterwards, at the same term, on application of plaintiff, it was ordered that a summons be awarded against appellants, returnable to the next term. This summons, in the usual form, attached to the amended petition of June 30, 1882, was issued July 13, 1883, and personally served July 16, 1883, on Ellen McCarty, she being the first person served, and, as shown by the sheriff's return, "by delivery of a copy of the writ to each of the within-named defendants, Cora F. McCarty and Mary E. McCarty." It does not appear from said return that appellant "Ellen Mary McCarty" was served with said writ, other than by the name of Mary E. McCarty, appearing in said return. At the October term, 1883, Ellen McCarty's motion to dismiss was overruled, and on October 19, 1883, leave was granted her to answer on or before November 1, 1883, on which day she filed a separate answer. This answer appears to have been lost, and at the April term, 1884, she filed a substituted answer. At the same term it was suggested that Cora F. and Ellen Mary were infants, and on plaintiff's application the court appointed their mother, Ellen McCarty, their guardian ad litem, who, on April 22, 1884, filed a separate plea and answer to the petition.

The answer of appellant Ellen McCarty contains a general denial, and the following allegations: That she is the widow of John McCarty, deceased. Said John McCarty obtained judgment against the Atlantic & Pacific Railroad Company in the Jackson circuit court for $10,000 for damages for personal injuries. That thereafter, in February, 1872, said Atlantic & Pacific Railroad Company and said John McCarty made a settlement of said judgment, by which said company agreed to and did pay said McCarty $2,000; agreed to give him employment for life, as its watchman, and also to deed him the premises now in controversy, and build a dwelling-house thereon of the value of at least $1,000. That, in consideration and performance of said agreement, said McCarty released said judgment, said railroad company built said dwelling-house,...