44 Mo. App. 97 | Mo. Ct. App. | 1891
In this case the death of the respondent, plaintiff in the action, was suggested by the appellant in this court at the October term, 1888, and on the twenty-third of January, 1889. At the same term, February 5, 1889, the cause was continued on motion of the attorney who had represented the plaintiff prior to his death. At the end of the March term, 1889, it was continued by operation of the general order of continuance made at the close of the term,
By section 2300 of the Revised Statutes of 1889, “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.” See also Jeffries v. Flint, 55 Mo. 29. By the constitution of the state (art. 6, sec. 15), “All laws relating to the practice in the supreme court shall apply to this court (the St. Louis Court of Appeals) so far as the same may be applicable.” This provision accordingly applies to this court. But this relates only to the substitution of parties, and not to the abatement of suits. By section 2201. of the Revised Statutes of 1889, it is provided : “In all cases where the representatives of a deceased or disabled 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 or disability, the action shall abate as to such party, and the interest of his representatives or successors 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.” This provision is in the nature of a special statute of limitations, and, after the expiration of the period limited, there can be no seieri facias, and consequently no revivor. Rutherford v. Williams, 62 Mo.
Our attention has fallen upon Prior v. Kiso, 96 Mo. 303. That decision renders it doubtful, to say the least, whether there can be any dismissal of a cause in this court because of the death of the plaintiff, and a failure to revive it in the name of his personal representative. An appeal, under our statute, in a case at law, is so far in the nature of a writ of error at common law, that it is not merely a prolongation of the original suit, in a sense which imports the statute relating to the abatement of actions into the appellate .court. An appeal in equity is generally held to be a continuation of the suit (Macklin v. Allenberg, 100 Mo. 337), and unlike a writ of error, which is in the nature of a new action. Maeldin v. Allenberg, supra, and cases cited; Pierce v. Stinde, 11 Mo. App. 364. But an appeal in an action at law (and probably, under our statutory system, in cases in equity ) is so far in the nature of a writ of error, that it does not revoke the judgment appealed from, butmerely suspends its execution. Lewis v. Railroad, 59 Mo. 495. If the judgment appealed from is affirmed, the judgment does not thereby become the judgment of the appellate court, but it remains the judgment of the trial court; the judgment of affirmance merely has the effect of removing the bar to its execution. A contrast from this is presented in the case of appeals from the judgments of justices and of the probate courts to the circuit courts. Such an appeal is for the purpose of a trial de novo. It vacates the judgment appealed from, and the appeal becomes merely a prolongation of the cause in another tribunal. It is merely a removal of the whole case to another tribunal for a new trial on the law and the facts. We have said this much for the purpose of indicating the difficulty in the way of granting the defendant’s
We have, however, the clear power to disincumber our docket of appeals which neither party can or will prosecute. We, therefore, order that this cause be stricken from the docket.
