Wilson v. Darrow

• Decision Date: 27 November 1909
• Parties: WILSON v. DARROW et al.
• Court: Missouri Supreme Court

122 S.W. 1077

223 Mo. 520

WILSON v. DARROW et al.

Supreme Court of Missouri, Division No. 1.

November 27, 1909.

1. ABATEMENT AND REVIVAL (§ 74) — APPEAL AND ERROR (§ 334) — TIME FOR REVIVAL — PROCEEDINGS.

After the lapse of the term at which the judgment was rendered, the trial court has no power to revive the cause on the death of a party pending his appeal and authorize the new party to file a bill of exceptions.

2. JUDGMENT (§ 486) — PLEADINGS TO SUPPORT — COLLATERAL ATTACK.

A judgment without any statement of facts constituting the cause of action is void on collateral attack.

3. ABATEMENT AND REVIVAL (§ 75) — REVIVAL OF ACTION.

A suit cannot be revived except in the mode provided by statute.

4. APPEAL AND ERROR (§ 189) — RESERVATION OF GROUNDS OF REVIEW.

The objection that a motion to revive the cause in the name of a stranger on plaintiff's death does not charge a transfer of interest in the subject-matter may be first raised on appeal.

5. ABATEMENT AND REVIVAL (§ 72) — REVIVAL OF ACTION — PROCEEDINGS.

The trial court has no power, under Rev. St. 1899, §§ 756, 758 (Ann. St. 1906, pp. 739, 741), to revive a suit in the name of a stranger on the death of plaintiff, in the absence of allegation or proof of a transfer of interest in the subject-matter; and defendant's failure to show cause against the revivor within the time limited by section 758 does not prevent him from contesting its validity.

6. APPEAL AND ERROR (§ 334) — PARTIES — DEATH OF PARTY — REVIVAL.

Under Rev. St. 1899, § 858 (Ann. St. 1906, p. 806), authorizing revivor in the Supreme Court in favor of executors, administrators, heirs, or devisees on the death of appellant pending appeal, an order of the trial court reviving the cause in the name of a stranger as the transferee of appellant's interest in the subject-matter is void.

Appeal from Circuit Court, Adair County; Nat M. Shelton, Judge.

Action by Frederick J. Wilson against Orilla F. Darrow and others. From a judgment for defendants, plaintiff appeals. Affirmed.

This suit was instituted by Frederick J. Wilson against Orilla F. Darrow and others, to determine title to certain real estate situate in Adair county, under section 650, Rev. St. 1899 (Ann. St. 1906, p. 667). The petition was substantially in the words of the statute. All of the defendants answered, setting up various defenses. A trial was had at the January term, 1907, of the Adair circuit court, which resulted in a judgment in favor of the defendants, and the plaintiff appealed by what is known as the "short method." During the same term the court duly granted plaintiff the right to file a bill of exceptions during the May term thereof, and during said May term the court extended the time for filing the bill of exceptions to during the October term thereof.

November 7, 1907, during the October term, 1907, the following was entered of record by order of the court: "Comes now the plaintiff herein by attorneys and files suggestion of the death of plaintiff, with entrance of appearance of Lillie B. Wilson, Lucile Wilson and Forest B. Wilson in this cause." Afterwards on the same day, November 7th, the following was by order of the court entered of record therein: "Comes now Lillie B. Wilson, Forest B. Wilson, and Lucile Wilson, and show to the court that the plaintiff in said cause, Frederick J. Wilson, departed this life on the 30th day of May, 1907, and that Lillie B. Wilson, Forest B. Wilson, and Lucile Wilson are his sole and only heirs at law; that said Forest B. Wilson and Lucile Wilson are minors. Now, therefore, the above Lillie B. Wilson, Forest B. Wilson, and Lucile Wilson hereby enter their appearance, and ask that a guardian ad litem be appointed by the court for said Forest B. Wilson and Lucile Wilson, and that said cause be revived and continued in the name of said Lillie B. Wilson, Forest B. Wilson, and Lucile Wilson as plaintiffs, and that the name and style of said action shall hereafter from this date be Lillie B. Wilson et al. v. Orilla F. Darrow et al." November 8, 1907, during said October term, 1907, of said court, suggestion of death of Frederick J. Wilson was filed by the Second National Bank of Jackson, Tenn., by their attorneys, Campbell & Ellison, G. C. Weatherby and A. Doneghy. Afterwards on the same day, November 8, 1907, during the said term said court caused to be entered of record therein the following: "Death of Frederick J. Wilson suggested on record, Second National Bank of Jackson, Tenn., substituted as plaintiff as the successor in interest of Frederick J. Wilson, deceased. It appearing to the court that Lillie B. Wilson, widow and executrix of Frederick J. Wilson, deceased, refuses to be substituted as plaintiff, and refuses to execute the trust in said cause, and that Forest B. Wilson and Lucile Wilson, the sole and only children of said Frederick J. Wilson, are minors, and cannot execute said trust. Cause revived in the name of said Second National Bank as plaintiff against Orilla F. Darrow and others, defendants. Summons ordered issued commanding Lillie B. Wilson, widow and executrix of Frederick J. Wilson, deceased, and Forest B. Wilson and Lucile Wilson, minor children of said Frederick J. Wilson, Orilla F. Darrow, Frederick L. Darrow, Mary L. Hamilton, Ellen A. Foster, and Charles E. Darrow to appear on or before the fourth day of the next term of said court to be begun and holden on the third Monday in January, 1908, to show cause, if any, why said cause should not stand revived and be continued in the name of the Second National Bank as plaintiff."

Afterwards, on November 8, 1907, there appears on the record of said court the following: "November 8, 1907. Second National Bank, Plaintiff v. Orilla F. Darrow et al., Defendants. Now at this day is received and filed bill of exceptions, which said bill of exceptions was taken and saved on the part of the defendant in the trial of this cause, and duly signed by Hon. Nat M. Shelton, judge of this court." January 2, 1908, in vacation of said court, a summons was issued with copy of suggestions of the death of plaintiff, with notice to revive in name of Second National Bank of Jackson, Tenn., summoning Lillie B. Wilson, Forest B. Wilson, Lucile Wilson, Orilla F. Darrow, Frederick L. Darrow, Mary L. Hamilton, Ellen A. Foster, and Charles E. Darrow. February 23, 1908, alias sciri facias issued to sheriff of St. Louis for defendant Charles E. Darrow. May 19, 1908, plaintiff orders alias writ for defendant Charles E. Darrow. December 10, 1908, order of publication issued for defendant Charles E. Darrow. January 20, 1909, defendants Orilla Darrow, Fred Darrow, Mary Hamilton, Ellen Foster file motion to quash writ. February 2, 1909, Charles E. Darrow files motion to quash order of publication. Said motion (formal parts omitted) is as follows: "Comes now defendant Charles E. Darrow for the purpose of this motion, and appearing for no other purpose whatever, and moves the court to quash the order of publication herein for the following reasons: Because the same was made and published without authority of law; because no order of court was made authorizing the same; because the court had no jurisdiction to make or order the same; because the whole proceeding for revival of said cause is void and wholly without authority of law." On February 2, 1909, during January term, 1909, the motion of defendant Charles E. Darrow to quash order of publication was sustained.

Counsel for respondent has filed in this court the following motion, to wit: "The respondents move the court to strike out the bill of exceptions herein: Because the same is filed without any authority of law. And because the same was not filed by a party to the record. Because the record shows that the judgment was rendered at the January term, 1907. That at the January term, 1907, the appeal was granted and leave given appellant to file his bill of exceptions during the May term, 1907. At the May term on May 20, 1907, the court extended the time for appellant to file his bill of exceptions until or during the October term, 1907, of said court. On May 30, 1907, the appellant died. At the October term of said court, on November 8, 1908, a bill of exceptions entitled `Second National Bank v. Orilla F. Darrow, et al.' was filed. Because after the death of the appellant no one could appear in the cause, take any order, or file any paper until the cause was revived. Because no leave of court was ever granted to Second National Bank to file said bill of exceptions. Because after granting of the appeal, and after lapse of the term, the circuit court lost all jurisdiction of the cause, and there was no power in that court to revive the cause."

Counsel for respondents make the following suggestions or objections to reviving cause in name of Second National Bank: "This case cannot be revived in the name of the Second National Bank for the following reasons: The plaintiff, Fred. J. Wilson, died May 30, 1907, during the May term of the circuit court. Proceedings for reviving the cause could have been instituted during the term in that court, but were not. On the showing made by Second National Bank on its application to be substituted as plaintiff, Fred. J. Wilson had the legal title to the land, and when he died that title passed to his heirs, and said bank has not succeeded to that interest. It has no more title or interest now than it had when the suit was begun. The trial and judgment in the case settled it that Wilson had no title. A trial and judgment with the bank as plaintiff could only decide whether the bank had any equity. That point would be best settled if the bank would sue the Wilson heirs. The time within which any one could be substituted as plaintiff has passed."

Campbell & Ellison, A. Doneghy, and G. C. Weatherby, for appellant. H. F. Millan, for respondents.

WOODSON, J. (after stating the facts as above).

1. Counsel for respondents has filed a motion in ...