Sample's Estate v. Travelers Indem. Co., 36703

• Decision Date: 02 March 1976
• Docket Number: No. 36703,36703
• Citation: 534 S.W.2d 618
• Parties: ESTATE of Caroline Ada SAMPLE, Deceased, Plaintiff-Respondent, v. The TRAVELERS INDEMNITY COMPANY, Defendant-Appellant. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 618

534 S.W.2d 618

ESTATE of Caroline Ada SAMPLE, Deceased, Plaintiff-Respondent, v. The TRAVELERS INDEMNITY COMPANY, Defendant-Appellant.

No. 36703.

Missouri Court of Appeals, St. Louis District, Division One.

March 2, 1976.

Colson & Wagner, David L. Colson, Farmington, for defendant-appellant.

Schnapp, Graham & Reid, John Reid, Fredericktown, for plaintiff-respondent.

WEIER, Presiding Judge.

This is a case with a long judicial history. It was originally filed on July 29, 1969 by E A. Sample, Administrator of the estate of Ada C. Sample, Deceased, in the probate court of St. Francois County, Missouri. A proceeding under § 473.207, RSMo.1969, it sought to obtain damages on an alleged breach of the bond of the guardian of Caroline Ada Sample against her son, Truman R. Sample, the guardian, and the Travelers Indemnity Company, the surety. Problems involving a void appeal from the probate court to the circuit court were presented to this court in State ex rel. Travelers Indemnity Co. v. Swink, 440 S.W.2d 152 (Mo.App.1969). Thereafter the case received the attention of the Supreme Court on an appeal from entry of a summary judgment in favor of plaintiff in Estate of Sample v. Travelers Indemnity Company, 492 S.W.2d 829 (Mo.1973). In that case the court determined that there were genuine issues as to material facts which remained to be resolved, and the case was remanded for trial on the factual issues. The case now appears in our court on appeal after a trial to a jury wherein verdict and judgment was in favor of plaintiff and against defendant Travelers Indemnity Company in the sum of $114,547.97.

We will not discuss the facts because the case on appeal immediately presents a question of appellate jurisdiction. After consideration of this problem, we have concluded that we do not have jurisdiction in the case and that the appeal must be dismissed.

This jurisdictional problem occurs because of a disclosure on October 31, 1974, just before trial, that Truman R. Sample, the prior guardian of the Estate of Caroline Ada Sample, and one of the defendants, had died on March 5, 1971. Within a few minutes after the court had convened to try the case, the attorney for Travelers Indemnity Company filed a suggestion of death and a motion to substitute parties. This paper suggested the death of Mr. Sample and requested the court to enter an order requiring substitution of a personal representative. The fact of death was also apparently known to plaintiff since a certificate of death was introduced in plaintiff's evidence. After a discussion of the problems involved, the attorney for Travelers who filed the motion asked the question: '* * * Now, do I understand the Court then to be indicating that there is a dismissal as to Truman Sample in this case today?' The court replied: 'It's the Court's understanding the Suggestion of Death just closes the case as far as Truman Sample is concerned.' Attorney for plaintiff then responded: 'Now, if it please the Court, just so there's no misunderstanding, we do not desire to have any dismissal as to Truman Sample in this case today. We never know what the Appellate Courts might do at a subsequent time.' The court responded: 'That's right.' Again, the attorney for plaintiff: 'In changing the law.' The court then stated: 'That's the reason I said that it's just closed as far as Truman today.' Attorney for plaintiff: 'It is not dismissed.' The court: 'No, * * *.'

The first point raised by defendant Travelers on appeal is that the trial court erred in proceeding without appointing a personal representative for the deceased defendant, Truman R. Sample, because Supreme Court Rule 52.12 required substitution upon suggestion of the death of a party. The reference to Rule 52.12 is not correct. The rule has been renumbered 52.13 and since its last amendment effective December 1, 1972, subparagraph (a) reads in pertinent part as follows: '52.13 Substitution of Parties--Dismissal (a) Upon Death. (1) If a party dies not the claim is not thereby extinguished, the court may, upon motion, order substitution of the proper parties. Suggestion of death may be made by any party or person in interest by the service of a statement of the fact of the death as provided herein for the service of a motion. A motion for substitution may be made by any party or by the successor or representative of the deceased party. Such motion, together with notice of hearing, shall be served upon the parties as provided in Rule 43.01, and upon persons not parties in the manner provided for the service of a summons. Unless a motion for substitution is served within 90 days after a suggestion of death is filed, the action shall be dismissed as to the deceased party without prejudice.'

It should be noted that whereas former Rule 52.12 made it mandatory upon the court to order substitution of parties after death after a proper motion is filed, new Rule 52.13 is couched in permissive language. Dismissal as to a deceased person is only mandatory if a motion for substitution is not served within 90 days after a suggestion of death is filed. Here, of course, the motion and suggestion of death were filed at the same time.

The problem readily becomes apparent in these procedural facts. No disposition has been made in the case as to the cause of action against defendant Truman R. Sample, the guardian of Caroline and principal on the bond. The plaintiff did not dismiss as to this defendant. In fact, plaintiff's counsel requested there be no dismissal as to Sample. The court has not ordered a substitution of a personal representative of this deceased defendant. Instructions of the case submitted plaintiff's cause of action only against the defendant Travelers Indemnity Company and the verdict and judgment were responsive to those instructions.

The question then arises as to whether it was necessary to have a personal representative appointed for the deceased guardian and defendant in this cause, Truman R. Sample, or whether it was possible to proceed to a separate judgment against the surety without a personal representative of the deceased guardian. As previously stated, this was a proceeding under § 473.207, supra. Estate of Sample v. Travelers Indemnity Company, supra, 492 S.W.2d at 830. This section and other...