Wormington v. City of Monett

• Decision Date: 07 December 1946
• Docket Number: No. 5670.,5670.
• Citation: 198 S.W.2d 536
• Parties: WORMINGTON v. CITY OF MONETT.
• Court: Missouri Court of Appeals

198 S.W.2d 536

WORMINGTON v. CITY OF MONETT.

No. 5670.

Springfield Court of Appeals. Missouri.

December 7, 1946.

Rehearing Denied January 9, 1947.

Appeal from Circuit Court, Stone County; Robert L. Gideon, Judge.

Not to be published in State Reports.

Suit by J. H. Wormington against the City of Monett to recover damages allegedly suffered by plaintiff because of the negligent operation of defendant's sewerage disposal plant. From a judgment in favor of the plaintiff, the defendant appealed. The case was reversed, and a motion for rehearing was sustained. Thereafter the plaintiff died. The plaintiff's heirs filed a motion to dismiss the appeal because there was no proper substitution of parties within one year from date of plaintiff's death. On motion by defendant to strike the motion to dismiss.

Defendant's motion to strike overruled and motion to dismiss sustained.

James E. Sater, of Monett, for appellant.

W. D. Tatlow and Frank B. Williams, both of Springfield, for respondent.

VANDEVENTER, Judge.

For convenience and clarity, we will refer to the parties as they were designated in the trial court. Early in the year of 1934, plaintiff (respondent) filed a suit in the circuit court of Barry County, Missouri, against defendant (appellant). The nature of the suit was a claim for damages alleged to have been suffered by plaintiff because of the negligent operation of defendant's sewerage disposal plant.

A change of venue was taken to Stone County, Missouri and defendant filed its answer October 5, 1934, in that forum. Trial was had October 5, 1934 which resulted in a jury verdict for the plaintiff in the sum of $5,000. A motion for new trial was filed by the defendant October 6, 1934 and overruled April 6, 1935. On the same day, an affidavit for appeal was filed and granted. On May 13, 1936, the case was argued in this court and an opinion was filed June 13, 1939, reversing the case. A motion for rehearing was filed July 8, 1939, sustained July 24 and since that time, the case has been on the docket of this court for reargument and submission. Between July 1939 and February 20, 1946, there have been 15 stipulations for continuance filed in this court.

On February 7, 1945, the plaintiff died and on February 20, 1946, more than a year thereafter, a suggestion of his death and motion to substitute Mabel Woolsey, administratrix of the estate of plaintiff, was filed in this court. It was alleged therein that Mabel Woolsey was plaintiff's daughter and had been duly appointed as administratrix of his estate. On March 5, 1946, a brief in support of the motion was filed and on March 5 and 13, briefs in opposition to the motion were filed. Certain parties claiming to be heirs of the deceased, one of whom was Mabel Woolsey, individually, and also as administratrix of the estate, filed, on October 9, 1946, a motion to dismiss the appeal because there had been no proper substitution of parties within one year from the date of plaintiff's death. These movants were represented by plaintiff's attorneys. The motion for substitution was overruled. On October 15, 1946, defendant filed a motion to strike the motion to dimiss from the files. A brief in support of the motion to dismiss was filed October 16, 1946 and an oral argument was had on the motion in this court on the same day at which time we gave the defendant additional time to file a written brief. When the case was argued orally before us, attorneys for plaintiff took the position that this court must dismiss the action as to the deceased plaintiff and that if we did so, only one party remained in court and that we had no jurisdiction to decide the matter on the merits because of that situation. They insisted that the case should be dismissed.

Attorneys for the defendant at that time orally agreed that the case should be dismissed but asserted that this court should, in addition to dismissing the case make an order abating the judgment, but in the brief in opposition to the motion, filed here November 7, 1946, defendant contends that the case should not be dismissed but should be heard upon its merits, or, if dismissed, the judgment should be abated.

The first question before us is, what action should we take for failure of either party to suggest the death of plaintiff within one year thereof, and move that the cause be revived in the name of the administratrix? The case, as it now stands before us, as we view it, is governed by the last clause of Paragraph (3) of Section 22(a) of the Civil Code of Missouri, Laws of Missouri 1943, Page 364, Mo.R.S.A. § 847.22(a) (3), which says: "* * * If death occurs after appeal and before final determination thereof and substitution on motion therefor is not made within one year after the death, the appeal shall be dismissed as to the deceased party."

Supreme Court Rule No. 3.08, Paragraph (a) (which governs our actions) provides as follows: "If substitution or motion therefor is not made within one year after the death of a party prior to judgment, the action shall be dismissed as to the deceased party; if the death occur after judgment and within the time for allowance of appeal by either the trial court or the appellate court, substitution may be made on motion in either of said courts; if the death occur after appeal and before final submission thereof, and substitution or motion therefor is not made within one year after the death, the appeal shall be dismissed as to the deceased party. When a party dies after judgment and no appeal is taken, failure to make substitution or motion therefor within one year does not invalidate the judgment." (Italics ours.)

The plaintiff died February 7, 1945 and the...