Postlethwaite v. Ghiselin

• Decision Date: 04 February 1889
• Citation: 97 Mo. 420,10 S.W. 482
• Parties: POSTLETHWAITE v. GHISELIN.
• Court: Missouri Supreme Court

10 S.W. 482

97 Mo. 420

POSTLETHWAITE v. GHISELIN.

Supreme Court of Missouri.

February 4, 1889.

1. JUDGMENT — COLLATERAL ATTACK — REVIVAL OF ACTION.

Though more than the three regular terms of court allowed by law for the revival of causes against the personal representatives of deceased defendants elapse after the suggestion of the death of a defendant, before steps are taken to revive the action against his executor, when the latter appears and pleads to the merits without objecting on the ground of the delay in the revival, a judgment rendered against the latter is not therefore void, so as to be liable to collateral attack.

2. SAME — FAILURE TO PLEAD STATUTE OF LIMITATIONS.

Nor would the failure of the executor to plead the general statute of limitations to the action invalidate the judgment.

Appeal from St. Louis circuit court.

This is a suit in equity by J. H. Postlethwaite against Horace Ghiselin, administrator, etc., of William F. Ferguson, deceased, to enjoin the enforcement of a demand allowed and classified in the probate court. The facts disclosed by the petition (so far as need be recited for the purposes of the decision) are as follows: An action was brought in 1863 in the St. Louis circuit court by Robert Ober and others against John B. Carson, to recover the price of 34 bales of cotton alleged to have been sold and delivered to said Carson. The action was pending and undetermined when said Carson died. His death was suggested at the October term, 1866. No steps were taken to revive the cause until February, 1868, during which time six regular terms of the circuit court elapsed. Summons to show cause against revival was then issued and served on the executor, who, at the April term, 1868, appeared and filed an answer to the merits of the action, denying the plaintiff's allegations, but not pleading the statute of limitations or other affirmative defense. The litigation resulted in a judgment against the executor of Carson for a large sum, which was affirmed on appeal by the supreme courts of Missouri and the United States. That judgment (having been allowed and classified in the probate court against said estate) was assigned to one of the present defendants. It is now sought in this proceeding to enjoin its enforcement on the ground that, as the original action was not revived against the executor within three terms after the suggestion of death, the circuit court had no jurisdiction over the executor, and that it was his duty to plead such abatement of the action, as well as the bar of limitation, to the plaintiff's demand therein. The circuit court in the present cause overruled a demurrer to the petition. Defendant declining to plead further, a perpetual injunction against the enforcement of the probate allowance and demand in question was decreed. Defendant appealed.

Given Campbell, for appellant. H. A. Haeussler, Leonard Wilcox, and E. T. Farrish, for respondent.

BARCLAY, J., (after stating the facts substantially as above.)

1. The principal question here presented is whether the lapse of three court terms after the suggestion of defendant Carson's death deprived the circuit court of jurisdiction to proceed further with the cause, in view of the subsequent appearance of the executor to the merits of the action. The cause of action in the original case was an ordinary one upon contract for the purchase and sale of cotton. It was such as by its nature survived against the executor under our laws. Rev. St. §§ 96, 97. Had there been no action pending when Carson died, it would have been clearly within the power of his executor to enter his appearance voluntarily to a new action of the same nature as the old, at the date when his appearance was actually entered in the pending action. At the date when he filed his answer as executor two years had not elapsed since the death of Carson, as the petition in this case shows. Hence the special administration limitation would then have been no bar to an ordinary presentation of plaintiff's demand to the executor.

The circuit court at that time certainly had jurisdiction of the subject-matter of the pending action, by which is meant that that court had jurisdiction by law of causes of the general...