Wormington v. City of Monett

• Decision Date: 14 July 1947
• Docket Number: 40284
• Parties: J. H. Wormington v. City of Monett, Appellant
• Court: Missouri Supreme Court

204 S.W.2d 264

356 Mo. 875

J. H. Wormington v. City of Monett, Appellant

No. 40284

Supreme Court of Missouri

July 14, 1947

Rehearing Denied September 8, 1947.

Appeal from Stone Circuit Court; Hon. Robert L. Gideon Judge.

Appeal dismissed.

James E. Sater for appellant.

(1) The failure of administratrix to substitute within the time prescribed by Section 22 invalidates the judgment herein, and the court is clearly vested with power to make all necessary orders to effectuate the intention of said section. Sec. 22 of the 1945 Code; Supreme Court Rule 3.08. (2) The clear inference of the above rule is that all judgments falling within the purview of this rule are invalidated except when death occurs after final judgment and no appeal is taken. Bixler v. Special Road District No. 1, Newton County, 156 S.W.2d l.c. 952, 235 Mo.App. 336; Kansas City v. J.I. Case Threshing Machine Co., 87 S.W.2d l.c 205. (3) The cardinal principle of construction of statutes as announced by all decisions of this state is: "General words in statute following clause enumerating particular classes or things will be limited to objects of kind and character specified." State ex inf. McKittrick v. Wilson, 166 S.W.2d 499, 350 Mo. 486; State ex rel. Goodloe v. Wurdeman, 227 S.W. 64, 286 Mo. 153. (4) Section 1043 of the old codes provides: "After the suggestion of death, marriage or disability, the order may be made on the motion of the adverse party, or of the representatives or successor of the party who died or whose power ceased." The present code contains no such suggestion or intimation, and it is a well settled principle of construction that when a statute is repealed or amended, that the omitted parts of the statute are treated as repealed. Keane v. Strodtman, 18 S.W.2d 897; State ex rel. Klein v. Hughes, 173 S.W.2d l.c. 880, 351 Mo. 651; Kroger Grocery & Baking Co. v. St. Louis, 106 S.W.2d l.c. 439, 341 Mo. 32 (5) In arriving at the proper construction of Section 22, the intention of the legislature and the purpose to be accomplished should be taken into consideration, and no construction given that would produce absurd or unjust results, or defeat the object which the legislature had in mind at the time. Bragg City Special Road Dist. v. Johnson, 20 S.W.2d l.c. 25, 323 Mo. 990; Bowers v. Missouri Mutual Assn., 62 S.W.2d l.c. 1063, 339 Mo. 492. (6) It is a rule of construction that statutes are to be construed so that the intention of the legislature will prevail over the literal sense of the terms. State ex rel. v. Sheehan, 269 Mo. l.c. 427; Perry v. Strawbridge, 209 Mo. l.c. 645; Glaser v. Rothschild, 221 Mo. l.c. 211. (7) The rule is well settled that where there is a grant of power, the necessary power is implied to make such grant effective, and that doubtful words of statutes will be, in large, supplied or even stricken out to apply to the intention of the lawmakers. In re Sanford, 236 Mo. l.c. 692; Shull v. Boyd, 251 Mo. l.c. 477.

W. D. Tatlow for Administratrix of Deceased; Frank B. Williams of counsel.

(1) It is only necessary for the court to read (not construe) 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. Section 847.22(a) (3), to dispose of this matter. It 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." The above paragraph is perfectly plain and unambiguous. (2) The rule is well settled in this court that "where the language of the statute is plain and unambiguous it must not be construed. It must be given effect as written." St. Louis Amusement Co. v. St. Louis County, 347 Mo. 456, 147 S.W.2d 667; State ex rel. v. Lucas, 348 Mo. 286, 153 S.W.2d 10; St. Louis v. Unemployment Comp. Comm., 348 Mo. 1153, 159 S.W.2d 249; State ex rel. v. Phillips Petroleum Co., 349 Mo. 360, 160 S.W.2d 764; State ex rel. v. Hughes, 173 S.W.2d 877; State v. Hallenberg, 341 Mo. 771, 108 S.W.2d 398. (3) After death of the sole plaintiff it was the duty of the appellant's counsel to bring in the plaintiff's personal representative within one year after the death, as is expressly provided in said Section 22(a). Bostick v. McIntosh, 278 Mo. 395, 215 S.W. 456; State ex rel. Fidelity Natl. Bank & Trust Co. v. Buzard, 351 Mo. 746, 173 S.W.2d 915; Rutherford v. Williams, 62 Mo. 252; 3 C.J. 1037; 4 C.J.S., sec. 996. (4) Said Section 22(a) provides: "The motion for substitution may be made by the successor or representative of the deceased party, or by any party." Counsel for appellant seeks to read out of the statute the words, "any party," under the ejusdem generis rule, so as to limit it to any party who is a successor or representative of the deceased. Any party plainly includes an adversary party. The statute further provides that summons shall be served upon the persons not parties to the appeal. This means, and can only mean, upon an adverse party who is not willing to voluntarily enter his appearance. If he is willing to appear, he does not need a summons to assist him to do so. This had been directly ruled in a recent case in this court. State ex rel. Fidelity Natl. Bank & Trust Co. v. Buzard, 351 Mo. 746, 173 S.W.2d 915. (5) Appellant's construction reads out of the statute the words "any party," and the provision for summons, and disregards and seeks to have the court repeal by judicial construction the plain provisions of Par. 3 of Sec. 22(a) quoted in Par. 1 hereof, supra. (6) Harmonizing Rule 3.08 of this court, containing this provision: "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," does not render Par. 3 of Section 22(a) ambiguous, either expressly or by implication. It is a cautionary provision that under such circumstances, the code provisions do not repeal by implication the general statute relating to the revival of judgments. This court has no power to repeal the plain and unambiguous provisions of the civil code.

OPINION

Conkling, J.

This case was transferred here by the Springfield Court of Appeals upon the motion of the appellant City (defendant below). The opinion of that Court is reported 198 S.W.2d 536. The cause of action was one for damages alleged to have resulted from the negligent operation of the City's sewage disposal plant.

On change of venue from Barry County, and in the Circuit Court of Stone County, plaintiff, on October 5, 1934, recovered $ 5,000.00 damages against the City of Monett. Upon the City's appeal the Court of Appeals reversed that judgment on June 13, 1939. Plaintiff Wormington's motion for rehearing was sustained by the Court of Appeals July 24, 1939, and thereafter the cause was on the docket of that Court for re-argument and submission. From July, 1939 until February 20, 1946 there were fifteen stipulations to continue the case filed in that Court. The cause was each time continued upon each such stipulation.

The plaintiff in the cause, J. H. Wormington, died on February 7, 1945. For more than a year thereafter there was no suggestion of death made by any one and no motion for substitution of parties was filed by any party to the cause, or by counsel. On February 20, 1946 the motion of Mabel Woolsey was filed in the cause in the Court of Appeals suggesting the death of plaintiff and moving the substitution of movant Mabel Woolsey, daughter of the original plaintiff, J. H. Wormington, and administratrix of his estate, for and in the stead of said Wormington, as respondent. That motion for substitution was overruled. Original counsel for Wormington, on October 9, 1946, filed a motion upon behalf of Mabel Woolsey and for others claiming to be heirs of Wormington to dismiss the appeal because there had been no proper substitution of parties within one year from the date of Wormington's death. Thereafter, the City filed a motion to strike the motion to dismiss from the files. Before the Court of Appeals plaintiff's counsel contended that Court should dismiss the action as to Wormington, and that, when such dismissal as to Wormington should be made, there would then be only one party (the City) in the case, and the Court of Appeals would then have no jurisdiction to adjudicate the merits of the case. Counsel for the City contended that the case should be heard upon the merits, or, that if dismissed, the Court of Appeals should abate the judgment in the Stone County Circuit Court.

Upon that issue as there presented the Court of Appeals held there was nothing ambiguous about either the statute or the rule and that it was its plain duty to dismiss as to the deceased party (plaintiff) and cited cases in support of its conclusion there stated. It further held that the administratrix and the heirs by filing their motion to dismiss the appeal had not entered their appearance and waived the substitution of parties.

Both the appellant City and the administratrix, Mabel Woolsey, on behalf of herself and the heirs of Wormington have filed briefs here. The appellant City in its brief claims it was the duty of the administratrix to keep the judgment alive by having herself substituted as party plaintiff-respondent within one year after Wormington's death, and that her failure to do so invalidates the judgment of the Circuit Court from which the City appealed. The administratrix contends in her brief that the failure (of either party) to have Woolsey substituted as party plaintiff-respondent within one year after Wormington's death merely required the appeal to be dismissed as to the deceased party, and leaves the judgment of the Circuit Court in his favor still...