Prior v. Kiso

• Decision Date: 26 November 1888
• Citation: 9 S.W. 898,96 Mo. 303
• Parties: Prior, Plaintiff in Error, v. Kiso, Administratrix
• Court: Missouri Supreme Court

9 S.W. 898

96 Mo. 303

Prior, Plaintiff in Error, v. Kiso, Administratrix

Supreme Court of Missouri

November 26, 1888

Error to Cole Circuit Court. -- Hon. E. L. Edwards, Judge.

Reversed and remanded.

Edwin Silver for plaintiff in error.

(1) The lower court should have sustained motion of plaintiff in error, that the mistake as to the revival of the cause against Hannah Kiso as executrix be corrected, and that she as administratrix of John C. Kiso, be substituted as a party and that the cause be revived against her as said administratrix. Williams v. Englebrecht, 38 Ohio St 97; Black v. Hill, 29 Ohio St. 88; 2 Tidd's Prac. 1163; R. S. secs. 3766, 3767. Plaintiff's motion to substitute Hannah Kiso as administratrix, in lieu of her as executrix, was in the nature of a writ of error coram nobis to correct a judgment because of an error in fact in the proceedings. Ex parte Toney, 11 Mo. 661; Powell v. Gatt, 13 Mo. 458; Latshaw v. McNees, 50 Mo. 381; Craig v. Smith, 65 Mo. 536; Stacker v. Cooper, 25 Mo. 401; Ex parte Gray, 72 Mo. 160. (2) The defendant in error, at the December term, 1884, of the trial court, suggested the death of John C. Kiso, and entered her voluntary appearance as his administratrix. Having herself made the suggestion of death for the first time in the trial court, and entered her appearance as administratrix, the suit thenceforth stood revived as to her. The plaintiff was entitled at least to a scire facias as asked by him, requiring her to show cause why it should not stand revived. He asked for the scire facias at the same time of the suggestion of death, but it was denied. (3) The statute of limitations does not run in favor of an estate during the time there is no administration on it. McKinzie v. Hill, 51 Mo. 303; McDonald v. Walton, 2 Mo. 726; Polk v. Allen, 19 Mo. 467. If section 3663, Revised Statutes, requiring a revivor within three terms after suggestion of death, applies to proceedings pending in the supreme court (which we do not concede), still it can only be regarded as a special statute of limitations, and there is no more reason why it should run while there is no administration, than any other statute of limitation. (4) Section 3766, Revised Statutes, provides that if one or more of several appellants or defendants in error die before joinder in error, such death shall be suggested by the survivor, and they shall plead to the assignment of errors. This provision manifestly means that the survivor shall represent the deceased for the purposes of the appeal or writ of error, and that the death was not to affect the proceeding. See also section 3767, when death occurs after assignment of error. The judgment being one at law, and therefore an entirety, was reversed as to all the defendants, regardless of whether John C. Kiso's representative was in court or not. Ins. Co. v. Clover, 36 Mo. 392; Pomeroy v. Betts, 31 Mo. 419; Rush v. Rush, 19 Mo. 441. Such being the case, the plaintiff could proceed to revive against the administratrix in the trial court, and prosecute his action against her. 38 Ohio St. 97. The judgment having been reversed, it was annulled, and all the subsequent proceedings arise on the original cause of action. Lewis v. Railroad, 59 Mo. 503.

Ryors & Vosholl for defendant in error.

(1) Plaintiff could acquire no rights under the writ of scire facias after more than three terms of court had passed. Gallagher v. Delarey, 57 Mo. 34; Rutherford v. Williams, 62 Mo. 252. (2) Mr. Belch did not have a legal right to appear for the real or imaginary representative without being employed. With the death of John C. Kiso his employment ceased. Story on Agency [7 Ed.] sec. 495.

Sherwood, J. Ray, J., absent.

OPINION

Sherwood, J.

This case has been here before. Its first appearance is recorded in 81 Mo. 241. There were several defendants then; there is but one now. John C. Kiso was one of them. Judgment went in their favor in 1879, and the plaintiff brought up the case on writ of error in 1880. While it was pending in this court, and on January 12, 1881, John C. Kiso died, and his death was suggested at the October term of that year, and at the same term the cause was attempted to be revived as to him, by entering, by consent, the appearance of his alleged executrix, Hannah C. Kiso. At that time the cause had not been submitted, nor as appears from the record, was it submitted until after such substitution and revivor. When errors were assigned, the cause was submitted at the October term, 1883, and resulted in the judgment being reversed and the cause being remanded March 24, 1884.

The cause went back to the circuit court in the year last mentioned, and on the first day of the May term, 1884, the plaintiff in open court dismissed his suit as to all of the defendants in the cause, except the defendant John C. Kiso. It turned out that Hannah Kiso had never been the executrix of the will of her deceased husband, but on October 23, 1884, she took out letters of administration with the will annexed. At the December term next following, the death of the defendant John C. Kiso was suggested, but by whom the suggestion was made does not appear, but on the same day she entered her appearance in the cause in the circuit court, in her capacity as testamentary administratrix, waived service of scire facias upon her, to the same extent as if she had been served with the writ, but not otherwise, and by special motion, in the nature of a plea to the jurisdiction, moved the court to dismiss the cause as to her. The motion was as follows: "And now comes Hannah Kiso, widow of John C. Kiso, deceased, and administratrix with the will annexed of the estate of John C. Kiso, and hereby waiving the service of any writ of scire facias upon her as said administratrix herein, enters her appearance as such administratrix to the same extent as though she had been duly served with process, but not otherwise, reserving to herself all and any rights and defenses in law and equity in this cause that may hereafter become necessary and proper. And the said Hannah Kiso, administratrix as aforesaid, respectfully shows to this court that she is not a proper or necessary party to this suit; that at the December term, 1879, of this court, there was a final judgment in favor of said John C. Kiso and all the other defendants herein; that thereupon an appeal was taken to the supreme court of this state by the plaintiff herein, and that pending said appeal in said supreme court, the said John C. Kiso, on the twelfth day of January, 1881, died in Osage county, Missouri, leaving a will, and that no letters testamentary were ever granted to any one by the probate court of Osage county until the twenty-third day of October, 1884, when the said Hannah Kiso took out such letters; that at no time prior to final decision of this cause in the supreme court was this Hannah Kiso, or any one else, made a proper party to this suit in said court, nor was there in truth or fact any legal representative, executor or administratrix of the estate of John C. Kiso, appointed or in existence, except as hereinbefore set out; and Hannah Kiso now says, that by the death of the said John C. Kiso, and the failure of plaintiff to bring in by proper process the heirs and legal representatives of said John C. Kiso, the cause of action as to said John C. Kiso wholly abated, and that there is no judgment, legal or valid, against said John C. Kiso in said court, and the judgment heretofore rendered in this cause in this court is final and absolute, and a bar to any other proceedings against this Hannah Kiso, administratrix with the will annexed of John C. Kiso, deceased. And the said Hannah Kiso further says, that the plaintiff herein had full knowledge of the death of John C. Kiso shortly after his said decease; that a final decision was rendered in the supreme court of Missouri on March 20, 1884, and that this Hannah Kiso was never legally, or by her consent or with her knowledge made a party to said suit heretofore in any court, and never authorized any one to enter her appearance, and was not in truth and fact at any time executrix of the last will of John C. Kiso, deceased, but became the administratrix with the will annexed, and obtained letters of administration from the probate court of Osage county, Missouri, on the twenty-third day of October, 1884, and that no letters of administration were granted to any one on said estate of John C. Kiso prior to said date, and the said probate court of Osage county, Missouri, had, during all that time and then and there, the sole jurisdiction and authority to grant and issue such letters; and by reason of the premises the said Hannah Kiso says that plaintiff should not be permitted to further proceed against her, and that she may be hence discharged with costs." This motion was duly verified by affidavit of said Hannah.

On the second day of the May term, 1885, she filed an affidavit of her attorney in support of her previous motion to dismiss which affidavit is the following: "Now comes Hannah Kiso, administratrix of the estate of John C. Kiso, deceased, by Rudolph Hirzel, her attorney, and respectfully shows to the court in support of the motion to dismiss as to her heretofore filed in this court, that the death of her late husband John C. Kiso, formerly defendant herein, was suggested at the October term, 1881, of the supreme court of Missouri, and that at the same term on the records of said court the appearance of Hannah Kiso, as executrix of John C. Kiso, was entered by J. Ed. Belch, Esq., who was and claimed to be one of the attorneys of John C. Kiso, deceased, but who in truth and fact never was employed by or the attorney of the said Hannah Kiso; that said cause was finally decided at the October...