Ranney v. Bostic

• Decision Date: 31 October 1851
• Citation: 15 Mo. 216
• Parties: RANNEY v. BOSTIC.
• Court: Missouri Supreme Court

15 Mo. 216

RANNEY

v.BOSTIC.

Supreme Court of Missouri.

October Term, 1851.

APPEAL FROM WASHINGTON CIRCUIT COURT.

SCOTT & YOUNG, for Appellant. 1st. None of the provisions of article 5 of the statute of 1845, regulating Practice at Law, apply to or govern the proceedings instituted against the representatives of a deceased defendant after the 4th of July, 1849, where the original defendant died prior to that time. A proceeding against the representatives of a deceased defendant, is in the nature of a scire facias, and as such, a new action, to be governed by the law in force, regulating Practice, at the time of its commencement. Fenner v. Evans, 1 Durn. & East, 261; Burr v. Atwood, 1 Salk. 87; Atwood v. Burr, 2 Salk. 603; Milsap v. Wildman, 5 Mo. R. 425. 2nd. But if the court should be of opinion, that this case is to be governed by the statute of 1845, and not by the provisions of the act of 1849, still the plaintiff could not be required to proceed by scire facias, when there was no party in existence upon whom it could be served, or to whom it could be directed. 8 Cranch, 92. An administrator, when appointed, must give notice of his appointment before he can avail himself of the lapse of time. Wiggins v. Adm'r of Lawson, 9 Mo. R. 262 3rd. This motion in this case was made for “Bostic's administrator,” and signed “attorney.” This was a mere nullity, there being no party of record to authorize the motion and if the subsequent sanction of the administrator before the motion was acted upon by the court, is to give it validity, it must also operate as a voluntary appearance” within the meaning of the 16th section of article 5, Practice at Law, Rev. Stat. Mo. 1845, and a general appearance for the purposes of this action, and cures all defects. Whiting v. Budd, 5 Mo. R. 443; Griffin v. Samuel, 6 Mo. R. 50; Evans v. King, 7 Mo. R. 441.4 th. By this motion to abate, for n unknown administrator and under the sanction of an administrator subsequently appointed, he is absurdly made to appear to take advantage both of his non-existence and non-appearance: this he is estopped from doing. Neither could the attorney for the original defendant make this motion, for although the old practice of requiring a new warrant of attorney to authorize an appearance to a scire facias is, for the sake of convenience, discontinued, yet, for the purposes of justice, its consequences remain. 1 Salk. 87; 2 Salk. 603. 1. Section 18, Statute 1845, requires scire facias to issue of the death suggested, before the third day of the second term 2. Statute 1849, extends his deed and directs that suits may be revived against, &c., at any time during the third term, as by reference to Statute 1845, Chancery Practice. 3. It was the object of this statute to bar the past rights of persons when there was an absence of parties either plaintiff or defendant. Laws 1849, §§ 9-12, Reviving Suits, art. 3; Laws 1845, Practice in Chancery, art. 8, §§ 19-20; Laws 1845, Practice at Law, arts. 5, 16, 18.

FRISSELL, for Respondent, relies upon the statute, and insists that the court did right in ordering the suit to abate. Stat. of Mo. p. 824, § 18. The statute gives no discretion. If no steps are taken to make the representative of a deceased defendant a party before the expiration of the third day of second term after the death has been suggested, the suit must abate. This works no hardship upon the creditor, for if no other person takes out letters he can do it himself, long before the expiration of the time for the suit to abate. If there is no administration it is his own negligence. Stat. of Mo. p. 63, § 7.

RYLAND, J.

Johnson Ranney commenced an action by attachment against the defendant, Bostic, returnable to the October term, 1848, in the Circuit Court of Washington county. The defendant was not served with the writ, he was not found, but certain lands were attached. At the return term of the writ, the death of the plaintiff was suggested on the record, and the suit was afterwards revived in the name of his executor, William C. Ranney. After the suit was thus revived, the defendant entered his appearance by attorney and filed his plea (the statutory general issue), and the cause was continued. At the October term, 1849, the death of the defendant, Bostic, was suggested on the record and the cause was continued, and was regularly continued from term to term, until October term, 1850. At this last term the following motion was made: “Ranney's administrator against Bostic's administrator. The defendant moves the court to order said suit to abate for the reason that the third day of the second term has elapsed since the death of the defendant has been suggested, without a scire facias being issued to make a party. M. Frissell, attorney.” This motion to abate, was continued until April term, 1851, when it was...