Walker v. Ross
| Decision Date | 02 April 1934 |
| Docket Number | No. 17986.,17986. |
| Citation | 71 S.W.2d 124 |
| Parties | WALKER v. ROSS. |
| Court | Missouri Court of Appeals |
Harris & Koontz, of Kansas City, for plaintiff in error.
Preble Hall, Frank Rader, and Swanson & Spalding (by Thomas C. Swanson), all of Kansas City, for defendant in error.
A writ of error, sued out on the 26th of April, 1933, has brought here the record, proceedings, and judgment of the trial court in the case of Arthur Walker, Plaintiff, v. M. J. Ross, as Administrator of the Estate of W. A. Ross, Deceased, Defendant, which judgment was rendered on the 11th day of February, 1932, against said defendant for the sum of $3,000, for personal injuries inflicted upon said plaintiff through the alleged negligence of said W. A. Ross, deceased, in the operation of a two and one-half ton Mack automobile truck whereby, on the 18th of December, 1926, said truck was negligently caused to collide with plaintiff's automobile in which he was riding at the time, giving to plaintiff the severe injuries complained of. Motion for new trial was overruled on June 21, 1932, and as hereinabove shown, within one year thereafter, the defendant brought the case to this court on writ of error.
The point which we should consider first, for the reason that, if it is decided as plaintiff in error contends, it would result in the reversal of the judgment, and in that event, there would be no necessity for passing on the other question raised, is that the petition does not state facts sufficient to constitute a cause of action. This contention grows out of the fact that the petition shows on its face, at the outset thereof, that W. A. Ross, the man against whose estate the suit is brought, was dead at the time the petition, shown in the record, was filed. If that be true, then the suit herein was brought after W. A. Ross died, and section 3280, R. S. Mo. 1929 (Mo. St. Ann. § 3280, p. 3398), which provides only for revival, after death of either party, of a suit brought before the death, does not authorize a suit brought after that death. Heil v. Rule, 327 Mo. 84, 86, 34 S.W. (2d) 90, 91; McIntosh v. Rule, Executor (Mo Sup.) 34 S.W.(2d) 91; City of Springfield v. Clement, 296 Mo. 150, 155, 246 S. W. 175; Shupe v. Martin, Administrator, 321 Mo. 811, 814, 12 S.W.(2d) 450. In other words, section 3280 aforesaid applies only to suits actually filed and pending at the time of the death of either the wronged or the wrongdoer.
No demurrer was filed, nor was the objection raised by answer; but at the commencement of the trial, the defendant administrator through his counsel objected "to the introduction of any testimony in this case for the reason the petition does not state facts sufficient to constitute a cause of action against the defendant." But, under section 774, R. S. Mo. 1929 (Mo. St. Ann. § 774, p. 1010), this objection is not waived by a failure to raise it by way of demurrer or answer. Childs v. Kansas City, St. Joseph, etc., Ry. Co., 117 Mo. 414, 427, 23 S. W. 373. In fact, an appellant can properly raise the objection that "the petition states no cause of action" for the first time in the appellate court. City of St. Louis v. St. Louis-S. F. Ry. Co., 330 Mo. 499, 50 S.W.(2d) 637, 638.
Plaintiff meets the above-mentioned objection to the petition by citing Barth v. Kansas City Elevated Ry. Co., 142 Mo. 535, 548, 44 S. W. 778, 781, where it is said: "It is fundamental that courts will take notice of their own records in the same cause; hence there was no necessity for averring the filing of the original petition within six months after Mr. Barth's death." (Italics mine.) That was the case of a widow suing for the...
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