165 S.W. 1012
Mo.
1914

OPINION.

BOND, J.

(After stating the facts as above).— The contention of appellant is twofold: first, that the administrator was an unnecessary party to the revival of the action in the court below; second, that the body of the averments in the petition was not so changed as to set out the death of the insane plaintiff and the names of her heirs at law and their rights of succession as was set forth in the order of revival. To these in order.

It may be conceded that, under the allegations of this petition, the administrator of the deceased insane person, was an unnecessary party in the order reviving the action. But a demurrer for that fault did not go to the rights of the heirs at law mentioned in the revival to recover as the successors in title of the deceased. And it may be further conceded that the court erred in not sustaining so much of the demurrer as went to this misjoinder. But this technical error on the part of the trial court, even if it had not been cured by the judgment which was ultimately rendered, wherein the court left the administrator out of view, is not one which entitles appellant to a reversal of that judgment, for his rights are not materially prejudiced by it. And appellate courts will not reverse a judgment for the intervention of an error on the trial of a case which does not affect the merits of the action. [R. S. 1909, sec. 2082,] We think the first contention of appellant is an unfruitful and barren technicality, and we therefore disallow it.

Neither is there any substance in his second assignment of error. When this cause was revived in the lower court its order to that effect was a part of *331the record proper, and became the future style of the case in all proceedings. This was understood by the defendant, for when he interposed his demurrers he filed them in the substituted style of the ease, and he is not therefore in a position to complain of the omissions by plaintiff of the formalities of interlining in the caption of the old petition the names of the new plaintiffs which were substituted by the valid order of revival. The plaintiffs were permitted by the court to make an interlineation in accordance with its order of revival. The defendants having treated that as done, cannot assign errors for its omission. It would have been proper for plaintiffs to have made verbal changes in the body of their petition setting forth their rights by succession to those of their deceased ancestor. But this is not indispensable to the affirmance of a judgment rendered in their favpr, which recites on its face that it was based upon a finding from the evidence of every fact necessary to prove that plaintiffs were the heirs at law of the deceased insane person. It would have been formally correct for plaintiffs, after the adduction of testimony, to have made such amendments of their petition as to make it conform to the evidence on the trial (R. S. 1909, sec. 1848), but inasmuch as the judgment itself sets out in ex-tenso a finding of all the facts necessary to its rendition, it follows that defendant was not hurt by a judgment in accordance with those facts, since the result would have been the same if plaintiff, prior to its rendition, had made the formal amendments to its petition necessary to embrace the findings of the judgment. Moreover, when this judgment was rendered the caption and style of the action had been changed by the order of record duly made in the trial court. Taking the statements contained in the new title of the case in connection with the body of the petition, which was presumptively adopted by the new parties plaintiff, we are not prepared to say that the petition *332and new caption, as a whole, were not sufficient under the liberal intendments of our statutes to support the finding and judgment of the court, without any mere verbal alterations to show the adaptation of the allegations of the petition to the new plaintiffs in the case.

We conclude that there is no merit in the final contention of appellant that the allegations of the petition did not warrant the judgment rendered. The conclusions reached by the learned trial judge were based upon undisputed evidence tending to support them. His judgment is for the right parties and is affirmed.

All concur.