112 Mo. App. 224 | Mo. Ct. App. | 1905
At the March term, 1904, and on March 7,1904, the death of John H. Overall was suggested, and the cause was continued to the October term, 1904; from the latter term it ivas continued to the present term (March, 1905). On February 27, 1905, William K. Kavanaugh filed his motion to he substituted as plaintiff in the cause, alleging as a reason therefor that John H. Overall, in his lifetime, held the title to the Fourth Street and Arsenal Railroad (the property involved in the controversy) in trust for John Scullin
The action did not abate by the death of John Overall, and after the suggestion of his death it was competent for the court to continue the action by his successor in interest. Section 756, R. S. 1899. The order for the continuance of the action, by section 758, R. S. 1899, may be made on voluntary appearance and by consent of the parties, but if consent is not given, the section provides that the order of revival shall be conditioned that the action be revived in the name of the representative or successor of the deceased party, unless good cause be shown against the revival at the next term; and the section further provides that summons shall be issued against the person to' be made a party and if, after the service of the same, sufficient cause be not shown against the revivor Avithin the first four days of the term to which the summons is returnable, the action shall stand revived. As the defendant did not consent to the revival of the suit in the name of Kavanaugh, we think the unconditional order substituting him as plaintiff on his motion Avas improvidently made and should be set aside;