Posthlewaite v. Ghiselin

97 Mo. 420 | Mo. | 1888

Barclay, J.

I. The principal question here presented is whether the lapse of three court terms, after the suggestion of defendant Carson’s death, deprived the circuit court of jurisdiction to proceed further with the cause, in view of the subsequent appearance of the executor to the merits of the action.

The cause of action in the original case was an ordinary one upon contract ¡for the purchase and sale of cotton. It was such as by ,its nature survived against the executor under our laws. R. S., 1879, secs. 96, 97. Had there been no action pending when Carson died, it would have been clearly within the power of his executor to enter appearance voluntarily to a new action of the same nature as the old, at the date when his appearance was actually entered in the pending action. At the date-when he filed his answer as executor two years had not elapsed since the death of Carson, as the petition in this case shows. Hence the special administration limitation would then have been no bar to an ordinary presentation of plaintiff’s demand to the executor. The circuit court at that time certainly had jurisdiction of the subject-matter of the pending action, by which is meant that that court had jurisdiction of causes of the general class to which that action belonged. Having jurisdiction of the subject-matter, all that was further necessary to complete the court’s jurisdiction in the particular case was to obtain jurisdiction over the parties to it. This it did when the executor filed his answer to the merits therein.

No valid reason has been suggested why the executor might not as lawfully give the court jurisdiction of the parties by his voluntary appearance in the pending action, after the time for its regular revival had expired, as he might have done by his entry of appearance to a new action of the same nature. The latter step he undoubtedly might properly have taken. R. S., secs. 186, 191, 3485. We regard the course actually adopted by him. and here in question as of the same effect. Roberts v. Marsen, 23 Hun, 486; Greenlee's Admr. v. Bailey, 9 Leigh, 526.

The facts of the present case clearly distinguish it from Rutherford v. Williams, 62 Mo. 252, where the right to revive a pending action after the lapse of the statutory period was denied. There the objection to such revival was made in the original cause. It was a sound objection so made. Here the objection was not suggested in the original proceeding at any time. It was first made in the present suit, a collateral proceeding to the former one. Hence the decision in Rutherford v. Williams, supra, is not to the point in this case.

Here a state of facts is disclosed more nearly resembling that reviewed in Tippack v. Briant, 63 Mo. 580. There a cause (over which the court originally had no jurisdiction, but which was brought within it by legislation pending the action) was dismissed by the court, but afterwards reinstated by consent of parties. The judgment was challenged in the same proceeding on appeal. This court met the objection of want of jurisdiction thus : “After the cause was out of court, it was, by the action of the parties and the court, restored to the docket at a time when the court possessed full and complete jurisdiction over all the matters in controversy. This action, we think, was equivalent to a voluntary appearance of the parties, and a submission by them anew of their dispute to the court. • By law the court had acquired jurisdiction of the amount in controversy, and in order to complete its jurisdiction over this particular cause, it was only necessary that the parties should submit to its jurisdiction, and this they did.”

The same principles applied here, we think, dispose of the objection to the jurisdiction of the court in the original action. That objection could have no force now unless the consequence of ‘such lapse of time in the revival of the action was to render all subsequent proceedings therein void. We do not think that consequence results for the reasons already outlined, and in view of previous decisions bearing incidentally on the conclusion we announce. Fine v. Gray, 19 Mo. 33; Coleman v. McAnulty, 16 Mo. 173; Thompson’s Adm’ r v. Williams, 4 S. W. Rep. [Ky.] 914; Mosman v. Bender, 80 Mo. 579.

II. The omission of the executor to plead the general statute of limitations to the plaintiff’s demand in the original action, or, indeed, to make any particular defenses in that case, cannot impair the validity of the judgment therein rendered. The present is not an action on the executor’s bond. The propriety of his conduct of the defense in that cause is immaterial upon any theory which has been suggested to support the supposed cause of action stated in the petition. If the judgment complained of was not void for want of jurisdiction (as we have ruled) the executor’s failure to make any special defenses in that action furnishes no reason, on the facts here disclosed, to enjoin its enforcement in this suit as against an assignee of the judgment.

We are of opinion that the petition entirely fails to state a cause of action.

Accordingly the judgment is reversed and the cause remanded with the direction to sustain the demurrer.

All the judges concur.