State ex rel. Fidelity Nat. Bank & Trust Co. v. Buzard

• Citation: 173 S.W.2d 915,351 Mo. 746
• Decision Date: 07 September 1943
• Docket Number: 38207
• Parties: State of Missouri ex rel. Fidelity National Bank and Trust Company, and Herbert v. Jones and Harry E. Minty, as Liquidating Trustees of Fidelity National Bank and Trust Company, Relators, v. Paul A. Buzard, Judge of the Circuit Court of Jackson County, Missouri, at Kansas City
• Court: United States State Supreme Court of Missouri

173 S.W.2d 915

351 Mo. 746

State of Missouri ex rel. Fidelity National Bank and Trust Company, and Herbert v. Jones and Harry E. Minty, as Liquidating Trustees of Fidelity National Bank and Trust Company, Relators, v. Paul A. Buzard, Judge of the Circuit Court of Jackson County, Missouri, at Kansas City

No. 38207

Supreme Court of Missouri

September 7, 1943

Preliminary rule discharged.

Bowersock Fizzell & Rhodes and Lathrop, Crane, Reynolds Sawyer & Mersereau for relators.

(1) The final order of revival must be entered on or before the third term after the suggestion of death. R. S. 1939, secs 1042-1047; 1 C. J. S. 939. (2) The conditions laid down in the statute must be strictly complied with. Page v. N. Y. Realty Co., 59 Mont. 505, 196 P. 871; Comm. v. Glover, 132 Ky. 558, 116 S.W. 769; Windfall City v. State, 172 Ind. 302, 88 N.E. 505; Stanton v. Thompson, 234 Mo. 7; Cole v. Parker Washington Co., 276 Mo. 220; Bostick v. McIntosh, 278 Mo. 395; Rutherford v. Williams' Legal Representatives, 62 Mo. 252; State ex rel. Porter v. Falkenhainer, 321 Mo. 613; DeHatre v. Ruenpohl, 341 Mo. 749; Hinkle v. Ward, 133 Kan. 516, 1 P.2d 83. (3) Section 1042 definitely limits the power of the court to three terms. State ex rel. v. Yates, 231 Mo. 276; Wood v. Carpenter, 101 U.S. 139; Rutherford v. Williams' Legal Representatives, 62 Mo. 252; Bostick v. McIntosh, 278 Mo. 395; 1 Houts on Missouri Pleading & Practice, sec. 234, p. 432; Gallagher v. Delargy, 57 Mo. 29; Johnson v. Hiller, 299 S.W. 135; Ranney v. Bostic, 15 Mo. 215; Fine v. Gray, 19 Mo. 33; Ferris v. Hunt, 18 Mo. 480; Crandall v. Irwin, 139 Ohio St. 253, 39 N.E.2d 608; American R. R. Co. v. Coronas, 230 F. 545; Jelke Co. v. Smietanka, 86 F.2d 470. (4) The preliminary rule entered at the third term was a mere order to show cause. The administrator could be made a party only after notice by scire facias. 59 C. J., sec. 4, p. 868; Marty v. Ahl, 5 Minn. 34; In re Dahnke's Estate, 222 P. 381; Spaeth v. Sells, 176 F. 797; 18 Enc. Pl. & Pr. 1137; 15 Enc. Pl. & Pr. 362; 1 Bates, Pl. & Pr. 638; State ex rel. Porter v. Falkenhainer, 321 Mo. 613; Tefft v. Citizens' Bank, 36 Kan. 457, 13 P. 783; Berkley v. Tootle, 62 Kan. 701, 64 P. 620; Reaves v. Long, 63 Kan. 700, 66 P. 1030; Steinbach v. Murphy, 70 Kan. 487, 78 P. 823; Thompson v. Bristow, 244 P. 430; M. P. Railroad Co. v. Fox, 56 Neb. 746, 77 N.W. 130; Holman v. Clark, 65 So. 913; Prager v. Wootton, 182 Ark. 37, 30 S.W.2d 845; Shea v. Starr, 85 A. 788; Halle v. Cavanaugh, 79 N.H. 418, 111 A. 76; McNutt v. State, 48 Ark. 30, 2 S.W. 254. (5) The origin and background of the present statute confirm the conclusion that the final order must be entered on or before the third term. R. S. 1939, secs. 1042-1047; G. S. 1865, Chap. 170, secs. 1-6; Wagner's Mo. Stats., 1872, Chap. 110, Art. X, pp. 1049 to 1050, secs. 1-6; R. S. 1879, secs. 3663-3668; R. S. 1889, secs. 2196-2201; R. S. 1899, secs. 756-761; R. S. 1909, secs. 1916-1921; R. S. 1919, secs. 1346-1351; R. S. 1929, secs. 891-896; St. Louis v. Alexander, 23 Mo. 483; Paddock v. Mo. Pac. R. Co., 155 Mo. 524, 56 S.W. 453; Strottman v. St. Louis, etc., R. Co., 211 Mo. 227, 109 S.W. 769; 59 C. J., Statutes, secs. 493, 495, pp. 894-897; State ex rel. v. Davis, 314 Mo. 373, 284 S.W. 464.

Homer H. Berger, Watson, Ess, Groner, Barnett & Whittaker and Douglas Stripp for respondent.

(1) Relators' contention that respondent lacked jurisdiction is based exclusively upon the false premise that a second, or so-called final, order of revivor is necessary. On the contrary, the statutes require only one order, whether it be conditional or otherwise, and relators' argument ignores the fact that such an order of revivor was made and that service was had on or before the third term. R. S. 1939, secs. 1042, 1043, 1044, 1047; Campbell v. St. Louis Union Trust Co., 346 Mo. 200, 139 S.W.2d 935; Carter v. Burns, 332 Mo. 1128, 61 S.W.2d 933; Noll v. Alexander, 282 S.W. 739; 15 C. J., sec. 96, p. 799; 20 R. C. L. 662; Schafer v. Robillard, 370 Ill. 92, 17 N.E.2d 963. (2) Relators' argument is not supported by the statutes or by any decision of a Missouri court. Hinkle v. Ward, 133 Kan. 516, 1 P.2d 83; Cole v. Parker-Washington Co., 276 Mo. 220; Bostick v. McIntosh, 278 Mo. 395, 213 S.W. 456; Rutherford v. Williams' Legal Representatives, 62 Mo. 252; State ex rel. Porter v. Falkenhainer, 321 Mo. 613, 12 S.W.2d 481; DeHatre v. Ruenpohl, 341 Mo. 749, 108 S.W.2d 357; 1 Houts, Missouri Pleading & Practice, sec. 234, p. 432; Gallagher v. Delargy, 57 Mo. 29; Johnson v. Hiller, 299 S.W. 135; Wilkinson v. Thom, 194 Mo.App. 173, 185 S.W. 552; Fine v. Gray, 19 Mo. 33; Ferris v. Hunt, 18 Mo. 480. (3) Dissimilar statutes and decisions of other states are neither persuasive nor helpful. (4) The origin and background of the present statute do not confirm, but refute, the conclusion that a so-called final order is necessary, or that such an order must be entered on or before the third term. Laws 1824, Chap. 363, p. 849; R. S. 1825, pp. 622, 636; R. S. 1835, pp. 465, 513; R. S. 1845, Chaps. 37, 136, Art. V; Laws 1849, p. 73; R. S. 1855, Art. XI, p. 1272; R. S. 1865, Chap. 170.

OPINION

Leedy, P.J.

Prohibition: Relators, by this original proceeding, seek to prohibit the respondent judge from taking further cognizance of an action brought against them, as defendants, in the Jackson County Circuit Court by Frank E. Jones, as plaintiff, to recover $ 76,889.50, with interest, which was returnable to the May, 1941, term of said court.

The sole question involved is the timeliness of the purported revivor of said action, under facts as follows: Defendants appeared at said May, 1941, term, and demurred. Thereafter, on August 20, 1941, and during the same term, the death of plaintiff, Jones, was duly suggested, the court being advised thereby that said Jones departed this life on or about May 27, 1941; but no steps were taken at the ensuing September and November, 1941, terms. Thereafter, on February 17, 1942, during the January, 1942, term, C. R. Benton, as administrator of the estate of said Jones, filed a motion for an order of revivor, and on the same day the court entered the following order on said motion: "Now on this day comes C. R. Benton and files his motion giving the Court to be informed that he is the duly appointed, qualified and acting Administrator of the Estate of Frank E. Jones, deceased, whose death has been suggested of record herein, and prays the Court to be made a party plaintiff in this cause and that the same be revived in his name; and upon such motion it is ordered that the said C. R. Benton, Administrator of the estate of Frank E. Jones, be made plaintiff in the place of said deceased, and that the action be revived and proceed in his name and favor, unless the defendants show good cause to the contrary within the first four days of the next term of this Court; and it is further ordered that a summons issue directed to said defendants to show cause why this action should not stand revived as prayed." (Italics ours.)

Summons was issued by the clerk, and served on the defendants more than 15 days before the first day of the next (March, 1942) term. It notified defendants to appear at the time directed by said order, and show cause why said case "should not be revived in the name of" the administrator and recited that "unless you do appear said cause will be so revived." On March 11, 1942, it being the third day of said March term, the defendants, appearing specially and for the purpose of the pleading only, filed their identical returns to the summons, or order to show cause, (with which was coupled a plea to the jurisdiction) wherein they alleged the facts with reference to the death of Jones, and the suggestion thereof, as hereinabove recited, and further alleged: "That since the May, 1941, Term of this Court at which the death of Frank E. Jones was duly suggested of record, three terms of this Court have expired, namely, the September, 1941, Term; the November, 1941, Term, and the January, 1942, Term, without said cause having been revived and that by reason of the facts aforesaid and the statutes of the State of Missouri pertaining to the abatement and revival of actions, said action abated at the expiration of the January, 1942, Term of this Court, and that this Court has no jurisdiction to revive or continue said action." Thereafter, during the same (March, 1942) term of said court, the court entered an order disposing of said returns, the relevant portions of which are:

"Now on this day, the Court having heretofore heard arguments of counsel upon the returns of the defendant[s], . . . to the order and summons to show cause why this action should not stand revived and proceed in the name of C. R. Benton, Administrator of the estate of Frank E. Jones, Deceased, as plaintiff, . . . in which returns said defendants respectively pray that said cause be dismissed, and the Court, having taken the same under advisement and having duly considered them, finds that no cause has been shown why said action should not stand revived as ordered by this Court at the January, 1942, term of this Court, on February 17, 1942, and that said returns and pleas in abatement should be overruled.

"It is therefore, ordered, adjudged and decreed that the said separate returns of the defendant [s], . . . should be, and the same hereby are, overruled, and it is further ordered that the order heretofore entered herein at the January Term, 1942, on February 17, 1942, reviving this cause in the name of C. R. Benton, as Administrator of the Estate of Frank E. Jones, deceased, as plaintiff, shall stand, to all of which said defendants except."

Relators say that the cause was not revived until the fourth term after the suggestion of death,...