State ex rel. Meinhard v. Stratton
| Decision Date | 06 June 1892 |
| Citation | 19 S.W. 803,110 Mo. 426 |
| Parties | The State ex rel. Meinhard et al. v. Stratton, Judge |
| Court | Missouri Supreme Court |
Demurrer overruled.
Sale & Sale for relators.
Relators are entitled to have plaintiffs' motion in said cause disposed of without a revivor: (1) Because, after the court found the issues in favor of defendants, they were entitled to judgment unless error had been committed by the court, and the court should not allow the death of one of the plaintiffs, pending the time taken by the court for argument on their own motion, to prejudice the right of defendants to the fruits of their victory. This was the rule at common law. 2 Tidd's Practice, 845, p. 932, et seq.; 2 Dunlop's Practice, 746; 1 Black on Judgments, sec. 128; Den v Tomlin, 3 Harr. (N. J.) 14; Reed v. Butler, 11 Abb. Pr. 128, and cases cited; Scranton v. Baxter, 3 Sand. (N. Y. Sup. Ct.) 660; Horner v Nicholson, 56 Mo. 220; Mitchell v. Overman, 103 U.S. 62, and cases cited in note thereto by C. G. Tiedeman in 20 Am. Law. Reg. 611; Kelley v. Riley, 106 Mass 339. This common-law rule has been codified by our statute. R. S. 1889, sec. 2202; Horner v. Nicholson, supra. (2) Because, upon the death of E. S. Jaffray, his right of action as plaintiff vested eo instanti in the surviving members of the firm of E. S. Jaffray & Co. Hence, there was no need of a revivor, as all the proper parties were before the court. Hargadine v. Gibbons, 45 Mo.App. 460; Matney v. Gregg Bros. Co., 19 Mo.App. 107; Bredow v. Savings Inst., 28 Mo. 181; Lachaise v. Libby, 21 How. Pr. 362; S. C., 13 Abb. Pr. 6; Buckman v. Brett, 35 Barb. 596; 13 Abb. 119.
Stone, Hoss & King and Burton & Wight for respondent.
(1) The demurrer to the alternative writ of mandamus should be sustained for the reason that it does not show that any order of revival was either asked for or made. It shows that the death of E. S. Jaffray was suggested, and that without any order of revival petitioners asked the court to proceed with the hearing on the motion for a new trial. An order of revival must first be made. If the representatives of E. S. Jaffray were not in court, they must either enter their voluntary appearance or be brought in under the statute. R. S. 1891, secs. 2196, 2197, 2198, 2199; Murphy v. Redmond, 46 Mo. 317. (2) If the cause survived to the surviving partners of E. S. Jaffray, and they are in court for the purpose of revivor, still there must be an order of revival. Petitioners were premature in insisting on a hearing on the motion for a new trial. R. S. 1889, secs. 2197, 2198.
Mandamus.
This is an original application for mandamus to defendant, Hon. Daniel P. Stratton, as judge of the circuit court of Vernon county, to require him to proceed to hear and determine a certain motion for new trial, in the case of Jaffray and others v. Levy and others, pending in that court.
An alternative writ was issued by one of the judges of this court in vacation, against which defendant has interposed a demurrer.
Upon that demurrer the cause has been submitted by stipulation.
The facts out of which the controversy arises are these:
In December, 1890, various firms, creditors of one Levy, united as plaintiffs in a bill, in the Vernon circuit court, seeking to set aside a judgment, confessed by said Levy in favor of the present relators, and to enjoin the sheriff from paying to them money realized on an execution, issued upon such judgment. Among the plaintiffs in that bill was the firm of E. S. Jaffray & Co., composed of E. S. Jaffray, Howard S. Jaffray, John R. P. Woodruff and Charles J. Hadfield. In due course that bill came on for hearing before Judge Stratton, was finally submitted, and (January 30, 1892) a decree was made, finding the issues in favor of relators (then defendants), and dismissing the creditors' bill. That decree was entered on the last day of the November term, 1891, of the circuit court over which defendant presides.
On the same day a motion for a new trial was filed by the then plaintiffs, based on various alleged errors. It being the last day of the term, said motion was continued and docketed for argument on May 4, 1892.
On that day the attorneys for all the parties, plaintiff and defendant, appeared in court. Thereupon the plaintiffs' attorney suggested the death of E. S. Jaffray, one of the members of the firm of E. S. Jaffray & Co. (one of the plaintiff firms), and objected to the court's hearing the motion for new trial because of said suggestion.
After argument, the court declined to proceed further with said motion. In view of this refusal the present relators, defendants in the suit mentioned, brought this proceeding.
I. While mandamus will not lie merely to rectify an erroneous ruling of a judicial officer, or to furnish a short process of appeal, it may properly be invoked to require such an officer to proceed to exercise his jurisdiction, when he declines absolutely to do so. Here the defendant refused to hear or decide the motion for new trial. There is no other process, of which we are aware, save mandamus, to compel action on his part if relators are entitled to have him proceed in the premises.
II. A finding had been made by defendant as trial judge, and a decree rendered favorable to these relators, in the case of Jaffray v. Levy. A large number of parties were joined as plaintiffs in that cause, and all of them moved for a new trial in due time. It is claimed for the present defendant that, on the suggestion of the death of one of plaintiffs, no further proceedings on the pending motion could take place until a revivor as to the interest of said deceased, or until the expiration of the statutory period therefor. R. S. 1889, sec. 2196.
It is enacted by our statute, concerning "the abatement of suits and their revival," among other things, that "after a verdict shall be rendered in any...
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