108 S.W.2d 357 | Mo. | 1937
We are confronted at the outset with the question whether we have jurisdiction of this appeal. The case as tried in the circuit court was to establish a constructive trust in real estate and for an accounting of some $5000 or $6000 in rents and profits collected therefrom by the respondent. The trial court made a general finding for the respondent and dismissed the then appellant's bill, whereupon he appealed. [1] Undoubtedly, on the record brought up this court had jurisdiction of the appeal under Section 12, Article VI of the Constitution and Section 5 of the Amendment of 1884, because the controversy directly involved the title to real estate. [Loewenstein v. Queen Ins. Co.,
[2] But after the appeal was lodged here, and before submission, the sole plaintiff and appellant died. His death was suggested and the cause revived in the name of his widow and administratrix, Mary DeHatre, all with the written consent of respondent. She appeared and the case has been briefed on all the issues mooted at the trial below including those involving the title to real estate. But an intestate's real estate descends to his heirs, not to his personal representative, Jones v. Peterson,
[3] The controversy over the accounting of rents and profits alone cannot give us appellate jurisdiction because the amount there in dispute does not exceed $7500. [Sec. 3, Const. Amendment of 1884; Sec. 1914, R.S. 1929, Mo. Stat. Ann., p. 2587.] So we must determine whether the part of the case involving the title to real estate is still before us in such sense as to keep our jurisdiction alive. This question turns on two others: Under the foregoing facts does our jurisdiction now depend solely on the state of the record when the cause left the trial court; and if not, has the respondent waived the failure to bring the appellant's heirs into the case, by consenting to a reviver in the name of the administratrix only and by briefing the case on the issues involving title to real estate?
[4] Where a cause of action is triable de novo on appeal the rules of abatement governing the action in the trial court prevail. [1 Am. Jur., sec. 67, p. 63; 1 C.J.S., sec. 128, p. 176.] In equity, on the death of a party "a pending suit does not abate if it is of a nature that survives; rather it is merely suspended until the representative of the deceased party, or other person who succeeds to his interest, is made a party to the litigation." [1 Am. Jur., sec. 57, p. 59; 1 C.J.S., sec. 117, p. 168; sec. 160, p. 212.] That is the general law on the subject. But we have statutes in this State governing the matter, which have always been treated as applicable to equity cases. [Posthlewaite v. Ghiselin,
Section 1056, Revised Statutes 1929 (Mo. Stat. Ann., p. 1339), provides: "If all the appellants or plaintiffs in error die after the appeal is taken, or writ of error is brought, and before judgment rendered thereon, the executors or administrators of the last surviving plaintiff or appellant or the heirs and devisees of the plaintiff and *752 appellant, in cases where they would be entitled to bring writs of error, may be substituted for such plaintiffs, and the cause shall proceed at their suit." Section 1058, Revised Statutes 1929 (Mo. Stat. Ann., p. 1340). provides: Persons may be substituted as parties, or compelled to become parties, in cases pending in the Supreme Court in like time and manner and with like effect as provided for in original suits in circuit courts."
Respecting actions in the circuit court that survive or continue (of which the instant suit is one), Section 891, Revised Statutes 1929, (Mo. Stat. Ann., p. 1173), provides: "In case of the death, . . . of a party, the court, on or before the third term after the suggestion of such death. . . . may, on motion, order the action to be continued by or against the representative or successor of such party in interest." Section 892 (Mo. Stat. Ann., p. 1177), says: "After the suggestion of the death, . . . the order may be made on the motion of the adverse party, or of the representatives or successor of the party who died, . . . and the names and capacities of the representatives or successor shall be stated in the order." Section 893 (Mo. Stat. Ann., p. 1178), provides: "If the order is made upon the voluntary appearance and by consent of the parties, the action shall forthwith stand revived." The section contains further provisions requiring the order to be made conditionally and summons to be issued if the order is not made on voluntary appearance and consent.
The next section, the important one here, is Section 896 (Mo. Stat. Ann., p. 1179), which provides: "In all cases where the representatives of a deceased . . . party shall not be made parties according to the provisions of this article, on or before the third term after the suggestion of the death, . . . the action shall abate as to such party and the interest of his representatives or successor therein; and the cause shall proceed in favor of or against the survivors. In case there be no surviving plaintiff or defendant, the suit shall be dismissed."
Posthlewaite v. Ghiselin, supra,
This Posthlewaite case was cited as authority on an analogous question in Lovitt v. Russell,
To the contrary, is Rutherford v. William's Legal Representatives,
The opinion says: "The statute, in relation to the abatement of suits and their revival, is in the nature of a special Statute of Limitations, and, after the expiration of the time therein limited, no writ of scire facias can issue. . . . No provisions are made for extending the time so limited under any circumstances; the language of the statute seems to be imperative, and we are not now prepared to say that there are any exceptions to its requirements. We are very clear, however, that if exceptions could be made, the statements contained in the affidavit of plaintiff's attorney were insufficient to excuse his failure to take the steps pointed out by the statute."
And in Cole v. Parker-Washington Co.,
Bostick v. McIntosh,
It is unnecessary for us to hold in this case that the provisions of Section 896 (Mo. Stat. Ann., p. 1179), supra, providing that a cause of action shall be dismissed if there is no surviving plaintiff, and his representatives have not been brought into the case on or before the third term after the suggestion of death — it is unnecessary for us to hold, we say, that these requirements never can be waived, and that the adversary party never can be estopped to invoke them. There is no such waiver or estoppel in this case. The fact that the respondent consented to the reviver as proposed by the administratrix, and that he briefed and presented the case on all the issues, does not amount to a waiver or estoppel. As a matter of fact this indicates the respondent is still abiding by the reviver as made. It is this court which is raising the question to protect our own jurisdiction; and obviously we cannot render and have no power to render any decree affecting the title to real estate when our record shows the present owners — or successors to appellant's title — are not in court.
There are a good many cases holding that our jurisdiction is dependent on the state of the record when it leaves the trial court, such as McGregory v. Gaskill,
But however that may be, the law is well settled that "no judgment or other order affecting the merits can be entered, before revivor, which would be binding upon those who are the successors in interest of the deceased party." [Carter v. Burns,