Murphy v. Redmond

• Decision Date: 31 July 1870
• Citation: 46 Mo. 317
• Parties: EDWARD G. MURPHY, Plaintiff in Error, v. WILLIAM REDMOND, Defendant in Error.
• Court: Missouri Supreme Court

46 Mo. 317

EDWARD G. MURPHY, Plaintiff in Error,

v.WILLIAM REDMOND, Defendant in Error.

Supreme Court of Missouri.

July Term, 1870.

Error to First District Court.

Draffen & Muir, with W. B. Napton, and Burke & Howard, for plaintiff in error.

I. Upon the death of the plaintiff the cause of action abated, and no judgment could have been legally rendered in said cause. (Gen. Stat. 1865, p. 491, § 30.)

II. The court erred in taking any action or a step in said cause, after plaintiff had died and his death had been suggested

on the record, until a scire facias had issued to defendant to show cause whv said suit should not be revived. (36 Mo. 47; 19 Mo. 35.)

Ewing & Smith and E. S. Edwards & Son, for defendant in error.

I. The jury having returned a verdict in favor of the plaintiff, and after verdict the defendant having filed motion for a new trial, which was continued by the court, the delay was occasioned by the court and not the plaintiff; and the plaintiff having died during said continuance, the court had authority to enter up judgment at the next succeeding term of the court. (4 Barb. 504.)

II. After the jury had rendered their verdict, and it had been received by the court, it then became the duty of the clerk to enter up the proper judgment. (Gen. Stat. 1865, ch. 133, p. 537, § 6; Platte County v. Marshall et al., 10 Mo. 345.)

III. If either party die pending a motion for a new trial, judgment may be entered, at common law, after his death, or of the term at which the verdict was rendered. (2 Tidd's Pr. 932; Bac. Abr., letter F, Abatement, Bouv. ed.; 4 Burr, 227; 1 Taunt. 385; Compt. & Jer. 47; 1 Strange, 427; 2 Strange, 917; 4 Barb. 504; 1 Johns. 410; 1 Burr, 147, 219.)

IV. After the jury had rendered their verdict in said cause, the court had authority to enter a judgment thereon at the next term of the court, although the plaintiff may have died after the verdict of the jury was rendered, and before a judgment was entered thereon. (Gen. Stat. 1865, ch. 170, p. 679, § 7.)

V. The court having power to enter up final judgment after the death of the party, the power to dispose of the motion for a new trial followed as a matter of course, and is settled by the authorities above cited.

CURRIER, Judge, delivered the opinion of the court.

Upon the recovery of a verdict by the plaintiff in the Circuit Court, the defendant moved to set the same aside and for a new trial. The cause was then continued to the next term of the court. At the term to which the cause stood continued, the death of the plaintiff was suggested and entered of record. No action was taken to bring in the dead party's representatives, nor did they appear voluntarily. The court nevertheless, without such appearance, and without the issue of a scire facias, proceeded at once to act upon the defendant's motion for a new trial, and overruled it, and then granted an appeal to the District Court, where the judgment was affirmed, and the defendant now brings the case here by writ of error.

All the proceedings in the lower court, subsequently to the suggestion of the death of the plaintiff, were ex parte and unwarranted. There was no party plaintiff in court. No steps could therefore be properly taken in the cause until that deficiency was supplied, either by the voluntary appearance of the deceased's representatives, or upon scire facias. Until that was done the effect of the death of the plaintiff was to suspend all further proceedings. (Hopkins v. Dysart, 36 Mo. 47; Fine v. Gray, 19 Mo. 33; ...