*1 Harry (Plaintiffs), Respondents, Newman Balbach Louis Lucy Leon Exec Henschel, Weinstein Executor (Defend Weinstein, utrix Deceased Estate Moritz Appellants. (2d) 871.
ants), Opinion Appeals. filed 1934. Louis Court of November Vogel appellants. Pierre A. *2 H, Whiiiingion respond-
Harry Newman, BaTbach A. Louis ents. Though BENNICK, points does show, the record not so C.
involved on going'to state- action, the merits of the *3 appears unquestioned ment in plaintiffs’ brief the action is that for plaintiffs legal the balance due for services rendered. originated justice’s Louis,
The ease city in in' the court of original wherein Bertha the defendants Moritz Weinstein were and Sperling. Upon judgment trial justice, before the was rendered plaintiffs; against Weinstein, favor of the and Moritz defendant- together $240, suit, of dismissed sum costs of cause was Sperling. toas defendant Bertha Weinstein, course, perfected
Thereafter defendant Moritz in due of judgment justice to Court his from the the Circuit 1931, when city Louis, lay May 12, of where the case process and the and other transcript docket the circuit papers relating with the of to the were filed clerk 14, 1932, Moritz Wein- July until when the death of defendant upon their suggested when, to the plaintiffs, stein was court names of Leon was continue the cause ordered to application, executrix, respectively, Lucy Henschel, executor and Weinstein and Weinstein, Moritz deceased. of estate of Wein- July Leon 26, 1932, the said On summons was issued command- representative capacities, Lucy Henchel their stein and writ at return term of the ing before court appear them revived they not be why the action should cause, had, if to show deceased; and of representatives personal them as the of both upon service had personal showed return of the sheriff parties. such inasmuch entered order On November revived, why the action should not shown not been cause had
as Lucy of Leon Weinstein and in the names revived stand it should Moritz respectively, the estate executrix, Henschel, executor Weinstein, deceased. On March 8, 1938, the defendants appear failed to prosecute appeal, upon their motion plaintiffs judgment was affirmed for such failure. The was plaintiffs have and recover out of the assets and effects of the estate Weinstein, Moritz deceased, in the hands of the de- substituted personal
fendants as his representatives, surety from the on the appeal bond, the of $240, sum with interest thereon from the date of judgment, together with the suit, costs of and that exe- cution issue therefor.
From such defendants’ to this court has followed in the usual course. The chief insistence of suggestion defendants is that
showing in the circuit court of original the death of defendant, Moritz Weinstein, the' of the circuit court proceed further with the cause on the merits divested, ceased and was that the circuit court thereupon should have at once noted such fact records, and have transferred the cause court to proceeded with therein lodged case of other demands against the estate the deceased.
Though point one, is a novel far know, and so as we runs counter accepted to what has been the practice State, of this we courts escape see no from the conclusion that defendants correct their views about the matter.
At the outset of the case, however, plaintiffs argue ques that the tion of the of the circuit have revived the action personal representatives the names of the of the deceased defend being ant, issue, the actual point preserved at has not been review, defendants here for so as to be our there no bill *4 exceptions, judgment having and no motion in arrest of been filed to call the appearing proper. attention to errors on face of the record plaintiffs’ position, they really As we understand concede that the things complained appear proper of do in the record rather than as exception, rely upon matters of defendants’ failure to have filed arrest, upon excep than the absence of a a motion in rather bill of precluding appeal. consideration of such matters on tions, as our this say objections merely not well taken. plaintiffs’ Suffice it proper of record apparent upon An error the face the is reviewable having- motion for new or arrest without either a a trial appeal on one, a material where, here, the error is filed, at as been least Dickey. action. ex of the rel. v. going to a matter substance [State 582; (Mo.), Timber W. Arcadia Co. v. Harris 288 231 S. Mo. Drainage 224 App. 467, Dist. No. Mo. 428; v. S. Chilton 285 W. 225 Lowry-Miller Dean, App. Lumber Co. v. Mo. (2d) 120; 28 W. S. (Mo. App.), 736; v. Sander 7 S. W. 29 Schwettman (2d) W. S. (2d) 301.]
798 question
So the for ultimately our determination resolves itself into jurisdiction this: the fully Is court, properly of circuit the acquired an appeal over of taken from the due course justice’s a court, by thereafter the of divested death the sole defend- pending ant the bringing the in the of case to final circuit ? Everything logically court quite depends else-in the case upon decision the question. answer to be made to this general We by are not upon unaware the doctrine relied in opposition contention, to defendants’ the doctrine jurisdiction thing once properly is acquired, it will not as a usual by subsequent changes the defeated in cir- occurrence events or though may even cumstances, particular and circumstances events jurisdiction prevented attaching would be such as have from in the obviously very contingencies first instance. But which might jurisdiction proceed serve to defeat the with court to cause; party and, it death as case before would of a a jurisdiction 15 is C. J. “Whether or not aptly said divested primarily' upon by party depends the nature death governing upon also the nature of the action and the statute and jurisdiction with which court invested.” is “the with which the
Now inasmuch as nature to be con the determinative features is invested” is one of court of a question of whether sidered rightfully acquired, is thereafter divested lawfully and once litigation, is it to be borne mind party of a death judg from the appeal court over an jurdisdiction of original derivative, and is no but justice’s is not of a court ment jurisdic merits than was disposing of the on its greater in jus words, justice In other himself. tion acquires possesses jurisdiction, such court, the circuit tice’s had, prac aside matters of and, only such, disposition of the cause. justice’s in effect sits as a tice, 19; 68 Mo. Mc Co., App. Metropolitan Insurance Life v. [Miller (2d) 541; 25 W. State Bank of (Mo. App.), v. Wittman Kenna (2d) 138; Anderson, App. 118, Mo. Sugar Creek 540, 87 S. W. App. Mosman, ex rel. 75.] State subject of that the course, fact familiar with is, Every one upon appeals from courts proceedings portion code, special general civil but by the governed organization courts, their to do statutes 7, Chapter 10, R. S. being Article -the same procedure, *5 2443.-2471). Indeed, the fact pp. chap.'10, art. Ann., St. (Mo. govern hearing court shall circuit practice chapter of such and sections by one provided is appeal 1929 (Mo. 2361, Revised Statutes being Section section article, 2469). p. Ann., see. St.
799 logically therefore, would seem follow, It to in matters of sub- having stance to do pend- with the abatement and revival of actions ing in court, the circuit a cir- court on from court, jurisdiction cuit in the exercise of in its derivative measured jurisdiction terms of possessed by justice, theretofore should general relating look, to the to the abatement and revival not statutes actions, having but rather to the to do with such matters statutes presenting- justice, pending themselves in eases before the the statutes question being (Mo. Ann., R. 1929 secs. 2244-2248, Sections S. 2409-2410). 2244-2248, pp. provide
Now while such statutes do that no suit a by which, court, law, to the executor or adminis- survives any if in trator, plaintiff, shall abate the death of the and that defendants, plaintiffs suit there two or or or more more - judgment, plaintiffs of such or shall die before the suit defendants surviving abate, plaintiff shall not but shall or survive they yet surviving defendants, or defendant dies, after been provide further that when the sole defendant judgment, case properly process served with before law, the death of such sole action, by survives, which the cause of justice make suggested, thereupon defendant shall shall entry pro- docket, and cease all further of such fact in his shall ceedings to be certify case to the the case and against an proceeded with in the case of other demands therein as 2410). p. 1929; Ann., see. (Section 2248, R. Mo. St. estate along with Section be read Likewise this latter section to 2168,. 2372), which, (Mo. Ann., p. sec. Statutes Revised ex- justice’s courts, jurisdiction of dealing subject have justice peace shall says “no pressly or administrator.” try any any executor action to hear or the cir- permit that to apparent In of the above it is at once view sole defendant death of the suggestion of the cuit justice’s court, to pending therein to an action representative personal his in the name of revive the merits, cause on the would to a determination proceed therewith denied the power expressly upon the circuit court be to confer established doctrine to violate the statute, and justice’s court have which, as we jurisdiction 'of the the derivative disposition court in the circuit out, limits the already pointed greater than the of no the exercise appeal App. 371, 34 Mo. Averitt, 377.] possessed. [Ingalls himself though Rhomberg, of Carrollton Town The case of appeals do with features, has to of its in some case analogous this court, certain sections mayor’s notice or deal purport involved, does charter town’s *6 question inability with the of a court to entertain against R. case an administrator Chicago, or executor. The case of Ry. App. 105, only I. & P. Woodson, goes Co. S. W. question action, of the revival of the personal representative name of of the de- plaintiff. ceased
Perhaps anticipating case, we have reached result suggest of the circuit event establishing that of claims an estate with is concurrent (Mo. Ann., R. S. 1929 see. court. [Section only true where p. point We need but out that this is 121).] it exercising original jurisdiction, and not where circuit court is limited to the exercise of a derived 'is court. therefore the circuit court should
The rendered with remanded directions to the circuit reversed, and the cause abating reason of the death of to enter order city certify Probate Court defendant, the cause de- proceeded the case other Louis, there so of the deceased. The Commissioner the estate mands recommends. foregoing opinion Bennick, C., adopted
PER CURIAM:—The opinion the court. as the is, reversed and accordingly, The of the Com- with the recommendations remanded accordance cause McGullen, JJ., Becker concur. Jand Hostetter, P. missioner. R. Dalton, Appellants, The P. Dalton Sturdivant Edna Charge H. of O. Moberly, Commissioner Corporation, Bank, Respondent. Missouri, State Finance f o (2d) 425. Opinion Appeals. December 1934. filed St. Louis Court