Rutherford v. Olly Williams' Legal Representatives

• Decision Date: 31 January 1876
• Citation: 62 Mo. 252
• Parties: THOMAS RUTHERFORD, Appellant, v. OLLY WILLIAMS' LEGAL REPRESENTATIVES, Respondents.
• Court: Missouri Supreme Court

62 Mo. 252

THOMAS RUTHERFORD, Appellant,

v.OLLY WILLIAMS' LEGAL REPRESENTATIVES, Respondents.

Supreme Court of Missouri.

January Term, 1876.

Appeal from St. Louis Circuit Court.

T. B. Childress, for Appellant.

Cline, Jamison & Day, for Respondents, cited Ferris vs. Hunt, 18 Mo., 480; Fine vs. Gray, 19 Mo., 33; Harkness vs. Austin, 36 Mo., 47; Ranney vs. Bostic, 15 Mo., 215.

HOUGH, Judge, delivered the opinion of the court.

At the April term, 1871, of the St. Louis circuit court, after this cause had been brought to issue, a suggestion of the death of Olly Williams, the sole defendant therein, was entered of record, and the cause was continued. At the April term 1872, more than three terms having elapsed after the suggestion of death, without any steps having been taken to bring in the legal representatives of said Williams, the plaintiff's suit was dismissed by the court. At the same term, James R. Shields, of counsel for the plaintiff, made application to the court to reinstate said cause, and filed an affidavit, stating in substance, that he was present in court when the death of defendant Williams was suggested, and that M. O'Reilly, who made said suggestion, at the same time asked that he might bring in the legal representative of the deceased; that affiant was thereby impressed with the belief that said representative would come into court, without action on the part of plaintiff's attorney to bring him in by process, and being so impressed, and believing that said representative was in court, he had no process issued; that affiant subsequently conversed with said representative about the trial of said cause and left him with the impression that he was in court, and would be ready for trial; and that affiant prepared for trial, and afterwards learned with surprise that said cause had been dismissed while affiant was absent trying a cause in another court; that plaintiff has a good cause of action, and affiant was misled and deceived by the conduct of defendant's counsel and, hence, had no process issued. There was a counter affidavit by M. O'Reilly to the effect that he was not and never had been counsel for Williams, that he suggested his death at the request of Mr. Mead, who had been his counsel, but neither asked leave, nor promised, to bring in his legal representative.

On the 7th of June, following, an order was made setting aside the order dismissing said cause, and reinstating the same on the docket of said court; and on the 17th day of June process was issued against the legal representative of said Williams, which was served. On the 12th day of October, 1872, an answer was filed to the scire facias stating the foregoing facts and praying that said writ might be quashed and said cause be stricken from the docket.

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