LELA JOHNSON, Aрpellant, v. ARCHER K. FRANK, Executor of the Estate of WALTON C. FRANK, Deceased, and SHRYOCK REALTY COMPANY, a Corporation
No. 39101
Division One
December 3, 1945
Rehearing Denied, January 7, 1946
191 S. W. (2d) 618
So far as appears from the present petition plaintiff, her stepdaughter, and the redhead were the only women who resided in plaintiff‘s home and by the petition, it would appear that defendants, on April 23, disclaimed any intention to impute any bad conduct to the stepdaughter by what they said on April 8. So the inference may be drawn that only plaintiff and the redhead were charged with having “soldiers running in and out day and night“, or as expressed on April 23rd, with “running a whore house.” Since plaintiff and the redhead were the only women in the house who had the soldiers running in and out day and night, the inference, we think, could be fairly drawn from the words spoken that defendants meant that plaintiff herself was indulging in promiscuous sexual relations with the soldiers, hence the question as to what offense defendants intended to impute to plaintiff was for the jury. Kersting v. White, supra; Lemaster v. Ellis, 173 Mo. App. 332, 158 S. W. 904.
The judgment should be reversed and the cause remanded with direction to set aside the order sustaining the demurrer, and set aside the order of dismissal. It is so ordered. Dalton and Van Osdol, CC., concur.
PER CURIAM:--The foregoing opinion by BRADLEY, C., is adopted as the opinion of the court. All the judges concur.
Clarence C. Chilcott and Walter A. Raymond for appellant.
On October 17, 1932, plaintiff filed her petition in the circuit court of Jackson County against Walton C. Frank, as sole defendant, alleging that he was the owner of an apartment building in Kansas City, Missouri; that she was a tenant therein; that steps for the common use of the tenants of said building were negligently maintained; and that by reason thereof plaintiff was caused to fall and be injured to her damage in the sum of $60,000, for which sum shе prayed judgment against the defendant. Summons was issued to the sheriff of Jackson County and a non est return made on November 14, 1932. On April 11, 1933, an affidavit in attachment on the alleged ground that defendant was a non-resident of the state was filed and a levy made on described real estate alleged to be owned by defendant. A transcript of levy was filed and a further non est return made May 8, 1933. Substantially the same procedure was repeated on March 20, 1935 and October 16, 1935 with non est returns on May 13, 1935 and November 11, 1935. No orders of publication were issued or advertised and no further action taken with reference to the several levies.
On November 19, 1936 defendant died at his home in Nodaway County and, thereafter, Archer K. Frank was, by the Probate Court of Nodaway County, appointed executor of the estate of Walton C. Frank, deceased.
On March 18, 1937 plaintiff suggested the death of defendant and moved for issuance of scire facias to revive the cause by substituting Archer K. Frank, executor, as party defendant. A conditional order of revivor was made, and, on Marсh 20, 1937, scire facias was served in Nodaway County on Archer K. Frank, as executor. On May 13, 1937 defendant, Archer K. Frank, executor, filed a plea in abatement, objected to revival of the action and denied generally the allegations of the petition for the order of revival.
The court found that plaintiff was at all times a resident of Jackson County; that Walton C. Frank had never resided in Jackson County, but was a resident of Nodaway County; that the administration of the estate was pending in the Probate Court of Nodaway County, where the executor resided; that Walton C. Frank was never found or served with process in Jackson County; and that he did not waive process or enter his appearance. The court held that plaintiff‘s cause of action abated upon the death of the sole defendant; that no lawful order of revivor could be made; that the subsequent filing of the amended petition and the issuance of summons and service upon defendants Shryock Realty Cоmpany and Archer K. Frank, executor, was without force and effect; and that the court had obtained no jurisdiction of the new defendants and was without jurisdiction to proceed in the cause. Other facts will be stated in the course of the opinion.
Appellant contends (1) that, at the time of the death of Walton C. Frank, her action had been “commenced” and was “pending” within the meaning of the revival statutes; (2) that she was legally entitled to have the cause revived against the executor of the estate of Walton C. Frank, deceased; (3) that she could legally amend her petition to add an additional party defendant, towit, Shryock Realty Company; (4) that Shryock Realty Company and Archer K. Frank, executor, “entered” their general appearance in the cause; and (5) that the judgment sustaining the pleas in abatement was erroneous and void because the issues had been previously ruled to the contrary and, therefore, were res adjudicata.
In support of her contention that the action had been “brought” and was “pending” at the time of the death of Walton C. Frank, appellant cites many cases holding that a suit is properly commenced when the petition has been filed and summons has been issued; and that when a suit has been properly “commenced” it is pending until finally disposed of. In none of these cases, however, was venue an issue. In so far as appears, all of the cases were instituted in the proper counties.
Appellant further contends that her suit was properly “brought” in good faith in the county where the cause of action arose, where the plaintiff resided and where the sole defendant had valuable property and could reasonably be expected to come. In her reply brief appellant says “there is no issue of good faith,” but if “there were such an issue . . . it should be resolved against respondents as a matter of law on this recоrd.” As stated, the petition alleged that the defendant was the owner of an apartment building in Jackson County and that the plaintiff was a tenant therein, and the record shows that the sheriff was at various times directed to levy an attachment on described tracts of real estate in Jackson County alleged to be owned by defendant. Respondents offered a number of witnesses who testified that defendant Walton C. Frank, from 1905 until his death, continuously maintained his residence and domicile in Maryville, Nodaway County, Missouri, and was associated with а dry goods firm in Maryville. There was no contrary testimony. No evidence was offered to show that Walton C. Frank had ever been in Jackson
The evidence on the hearing of the pleas in abatement did not require the conclusion that defendant, Walton C. Frank, “could reasonably be expected to come” to Jackson County or that appellant could reasonably expect to obtain personal service upon him in Jackson County. Appellant concedes that, if the statute of limitations was involved, the burden would rest upon her to establish that she acted in good faith and on reasonable grounds in instituting her suit in Jackson County. Krueger v. Walters (Mo. App.), 179 S. W. (2d) 615, 618; Wente v. Shaver, 350 Mo. 1143, 169 S. W. (2d) 947, 953. Appellant assumes that Walton C. Frank “could reasonably be expected to come” to Jackson County where service could be had upon him and, on the basis of that assumption, argues that she acted in good faith and without negligence in filing her suit in Jacksоn County. If there was an issue of good faith, innocent mistake or negligence in filing the petition in Jackson County, or an issue as to reasonable grounds for believing that defendant could “be expected to come to Jackson County at frequent intervals” so that personal service could be had upon him in that county, then such issues of fact were necessarily determined against appellant by the judgment of the court sustaining the pleas in abatement. The trial court‘s finding on issues of fact may not be disturbed by this court unless clearly erroneous.
Appellant contends that the “action was properly and legally entitled to be revived against the administrator of the deceased defendant, Walton C. Frank.” Appellant again assumes the action had been brought in good faith without negligence in the proper county and was “pending” against the sole dеfendant. Appellant argues that at the time of defendant‘s death “there had been no order or judgment of the court disposing of the case, hence it was then pending.” While petition had been filed and summons issued in Jackson County, Walton C. Frank did not live in that county, he was never found in that county during the succeeding four years, he did not enter his appearance in the cause and the circuit court of that county had never obtained jurisdiction of him. The essential facts necessary to give the circuit court of the county of plaintiff‘s residence jurisdiction to proceed in the cause was, therefore, absent and death foreclosed the possibility of personal service upon defendant in that county.
For a suit to have been “brought,” within the meaning of
While the question of whether or not a suit has been “brought” has many times been raised with reference to tolling the statute of limitations, we do not find that it has been raised with reference to survival where no service was had on the defendant before his death and where he was not a resident of and not found in the county where suit was instituted. In cases involving the statute of limitations, the “suing out of process” has been held to mean “valid process issuing out of a court having jurisdiction not only of the subject mattеr of the suit, but which court can and does also acquire jurisdiction of the defendant.” Mertens v. McMahon (Mo. App.), 115 S. W. (2d) 180, 183.
In the case of Conrad v. McCall, 205 Mo. App. 640, 226 S. W. 265, 266, the court said: “Where the court has acquired no jurisdiction of the named defendant and is powerless to do anything, except perhaps to clear its docket of a pretended case not properly before the court, it can hardly be said that there is a pending case. . . . If the plaintiff knows that the court in which he files his petition has no jurisdiction of the subject matter of the suit or cannot acquire compulsory jurisdiction of thе person of the defendant, then the issuance of a summons is a futile thing and cannot breathe life into the action. It is true that the defendant might have voluntarily appeared and thereby conferred jurisdiction on the Newton County Court. Or, as the suit was brought in the county of plaintiff‘s resi-
Appellant insists that, in any event, the action did not abate immediately upon the death of the sole defendant, but was pending and alive when the amended petition was filed; and that the subsequent issuance and service of process on respondents give the court full jurisdiction to proceed. Appellant again assumes that the action was properly filed in good faith in Jackson County and that the circuit court of that county had jurisdiction of the subject matter and of the person of defendant at the time of defendant‘s death and, therefore, that the action did not abate, until suggestion of death was made and until three terms of court had passed after suggestion of death without a motion for revivor. Carter v. Burns, 332 Mo. 1128, 61 S. W. (2d) 933, 938; State ex rel. Fidelity National Bank v. Buzard, 351 Mo. 746, 173 S. W. (2d) 915, 919. The cases cited are not applicable because the appellant‘s action was not instituted in a county where defendant could be found and no service of process could be or was served upon him in Jackson County and it was not shown to the satisfaction of the trier of fact that the action was brought in good faith and on reasonable grounds to believe that valid service of process could be obtained in Jackson County. No valid action was ever brought. The action attempted was no action. The court was without jurisdiction over defendant in his lifetime and the cause abatеd upon his death. Appellant was not entitled to file an amended petition or to add an additional party defendant. The service of scire facias upon the executor in Nodaway County, where the administration of the estate of deceased was pending, and the subsequent issuance and service of summons on the executor in Nodaway County, gave the court no jurisdiction to revive the action against the estate or to proceed with the cause. By instituting the action in the county of her own residence and where defendant did not reside, plaintiff merely took a chance of obtaining service of process upon defendant in that county and thereby vesting jurisdiction in the circuit of that county, but jurisdiction was not vested when defendant died. The court was without jurisdiction to do more than dismiss the cause or strike it from the docket. The court did not err in sustaining the pleas in abatement, unless by reason of other matters the judgment was erroneous.
In so far as respondent Archer K. Frank, executor, is concerned it is wholly immaterial whether he entered his general appearance or not because, the cause having abated upon the death оf the defendant Walton C. Frank, the court had no jurisdiction of the subject matter of the action and such jurisdiction could not be waived or conferred by consent. State ex rel. Lambert v. Flynn, 348 Mo. 525, 154 S. W. (2d) 52, 57. The executor had no power to consent to or waive the abatement of the cause of action any more than he could waive the statute of non claim.
Did the other defendant enter its appearance? On September 15, 1937 Shryock Realty Company filed its motion to strike plaintiff‘s amended petition and to quash the issuance and return of summons. It alleged that the court had never acquired jurisdiction over the person of Walton C. Frank or over the subject matter of the suit; that the court had no jurisdiction over the executor; that the “action was not legally commenced or brought“; and that it had not been revived and was not subject to revival. The grounds of the motion were that, prior to any revival of the original cause, the amended petition was filed and summons issued; that the filing оf the amended petition, prior to any revival of the cause, was without force or effect and was insufficient to justify the issuance of process; and that, since plaintiff by the amended petition was attempting to substitute a cause of action against Shryock Realty Company for her original cause against the deceased defendant, and the substituted cause was a departure from the cause alleged in her original petition. Appellant insists that “such allegations struck at the jurisdiction of the court over the subject matter and involved the merits of the action,” and constituted an entrance of general appearance. The motion sought a ruling upon the face of the record that no valid amended petition had been filed and no legal summons had been issued or service of process obtained. The motion to strike was overruled on September 21, 1937 and, thereafter, the said defendant was “given 20 days to apply for a writ of prohibition.” On January 28, 1938 the said defendant was permitted to amend its plea to the jurisdiction and plea in abatement by interlineation. On November 13, 1942, it was permitted to file an amended answer “by way of plea to jurisdiction
Was the judgment erroneous on the theory that the issues presented by the pleas in abatement were res adjudicata? As stated, the motion of Shryock Realty Company to strike plaintiff‘s first amended petition and to quash the issuance and return of summons was overruled. Thereafter, Shryock Realty Company filed its plea to the jurisdiction and plea in abatement, reincorporating the matters stated in its overruled motion to strike. Appellant then moved to strike from the files the plea to the jurisdiction and plea in abatement on the ground that all of the matters presented had been ruled adversely to Shryock Realty Company and, further, that the pleading was not an answer, demurrer or other pleading known to the law. Shryock Realty Company then amended its plea by interlineation so as to deny generally the allegations of the amended petition and to designate its pleading as an answer and plea to the jurisdiction and in abatement. Appellant then moved to strike, as res adjudicata, the parts of the answer setting up the facts relied upon to support the plea to the jurisdiction and in abatement. The motion was sustained. Thereafter, the Shryock Realty Company filed its аmended answer, including a plea to the jurisdiction and in abatement, and reinserted the matters previously stricken out on motion. Appellant again moved to strike out these matters as res adjudicata. This motion to strike was taken with the case and was denied, when the plea in abatement was sustained.
Archer K. Frank, executor, had also filed a motion to strike plaintiff‘s amended petition and had moved for judgment on his plea in abatement, and both had been overruled before he filed his amended answer, which included the рlea to the jurisdiction and in abatement. Appellant in her reply to the answer of defendant Archer K. Frank, executor, pleaded the prior rulings as res adjudicata and it was invoked only as respects “the question of the court‘s jurisdiction of the person of Archer K. Frank.” It was not alleged that the issue of abatement had been adjudicated. In the hearing on the plea in abatement, all of the pleadings and the orders of court were admitted without objection.
It will be noted that the motions to strike the amended petition wеre ruled on the record proper without a hearing of evidence. The second motion of appellant to strike parts of Shryock Realty Company‘s answer was ruled on the face of the record. The issues of fact to sustain the allegations of the plea in abatement in the amended answer were tried only once. Evidence was offered to sustain the allegations of fact not shown by the record. Only one judgment on the merits of the matters stated in the plea in abatement was entered. The previоus rulings on Shryock Realty Company‘s motion to strike plaintiff‘s amended petition and the ruling on appellant‘s motion to strike out parts of Shryock Realty Company‘s answer were not res adjudicata of the issues of fact and law presented in the hearing on the merits of the plea in abatement contained in the amended answer of Shryock Realty Company. Neither were the previous rulings on the motion of Archer K. Frank, executor, res adjudicata. The doctrine of res adjudicata was not applicable so аs to prohibit a different judge of the same court from exercising his discretion, permitting an amendment of the answers, hearing evidence, further considering the same matters and reaching the conclusion and judgment appealed from. State ex rel. Mueller Furnace Company v. Buckner, 207 Mo. App. 48, 229 S. W. 392, 393; Rolleg v. Lofton (Mo. App.), 230 S. W. 330; State ex inf. McKittrick v. Wiley, 349 Mo. 239, 160 S. W. (2d) 677, 684. See, also, Rice v. Van Why, 49 Colo. 7, 111 Pac. 599, 601; Follmer v. State, 94 Neb. 217, 142 N. W. 908, 909; State ex rel. Williams Coal Co. v. Duncan, 211 Ind. 203, 6 N. E. (2d) 342, 343; 14 Enc. Pl. & Pr. (Motions) p. 176; 34 C. J. 765, Sec. 1178; 34 C. J. 884, Sec. 1292; 37. Am. Jur., Motions, Rules and Orders, Secs. 19 and 34.
The judgment is affirmed. Bradley and Van Osdol, CC., concur.
PER CURIAM:----The foregoing opinion by DALTON, C., is adopted as the opinion of the court. All the judges concur.