96 Mo. 303 | Mo. | 1888
This case has been here before. Its first appearance is recorded in 81 Mo. 241. There were several defendants then ; there is but one now. John C. Kiso was one of them. Judgment went in their favor in
The cause went back to the circuit court in the year last mentioned, and on the first day of the May term, 1884, the plaintiff in open court dismissed his suit as to all of the defendants in the cause, except the defendant John C. Kiso. It turned out that Hannah Kiso had never been the executrix of the will of her deceased husband, but on October 23,1884, she took out letters of administration with the will annexed. At the December term next following, the death of the defendant John 0. Kiso was suggested, but by whom the suggestion was made does not appear, but on the same day she entered her appearance in the cause in the circuit court, in her capacity as testamentary administratrix, waived service of scire facias upon her, to the same extent as if she had been served with the writ, but not otherwise, and by special motion, in the nature of a plea to the jurisdiction, moved the court to dismiss the cause as to her. The motion was as follows :• “ And now comes Hannah Kiso, widow of John C. Kiso, deceased, and administratrix with the will annexed of the estate of John C. Kiso, and hereby waiving the service of any writ of scire facias upon her as said administratrix herein, enters her appearance as such administratrix to the same extent as though she had been duly served with process, but not otherwise, reserving to herself all
On the second day of the May term, 1885, she filed an affidavit of her attorney in support of her previous motion to dismiss, which affidavit is the following: “Now comes Hannah Kiso, administratrix of the estate of John C. Kiso, deceased, by Rudolph Hirzel, her attorney, and respectfully shows to the court in support of the motion to dismiss as to her heretofore filed in this court, that the death of her late husband John C. Kiso, formerly defendant herein, was suggésted at the October term, 1881, of the supreme court of Missouri, and that at the same term on the records of said court the appearance of Hannah Kiso, as executrix of John C. Kiso, was entered by J. Ed. Belch, Esq., who was and claimed to be one of the attorneys of John 0. Kiso, deceased, but who in truth and fact never was employed by or the attorney of the said Hannah Kiso; that said cause was finally decided at the October term, 1883, of said supreme court, and that the said Hannah Kiso, neither in her own person nor as administratrix was ever made a party to this suit, and that the said Hannah Kiso was never brought into court and never became the personal representative of John C. Kiso, until October, 1884;
“Rudolph Hirzel, being duly sworn on his oath says: That he is the sole attorney of Hannah Kiso, administratrix, cum testamento annexo, of the estate of Jno. 0. Kiso, deceased, and as such has carefully examined the records and proceedings in this and the supreme court in the above-named cause, and appeared as such attorney for said Hannah Kiso in the supreme court on the motion to set aside the judgment, etc., in the supreme court filed by said Geo. W. Prior, and that all the matters and things hereinbefore stated, as facts, in support of the former motion to dismiss filed in this court, are true and correct. Rudolph Hirzel. Sworn to and subscribed before me this nineteenth day of May, A. D. 1885. W. H. Lusk, clerk.”
On the same day the plaintiff filed a motion to amend and correct the error in the record, to substitute Hannah Kiso as administratrix, as a party to the muse, in lieu of said Hannah as executrix, and to
Upon the hearing of this motion, plaintiff read in ■ evidence said motion and affidavit, also the following record entry of the supreme court made at its October term, 1881, in this case, as follows: “ Come now the parties aforesaid by their respective attorneys, and suggest to the court the death of John C. Kiso, the defendant in error herein, and by consent of parties it is ordered by the court that the cause stand revived in the name of Hannah Kiso, executrix of the estate of John C. Kiso,, deceased, as defendant in error here.” Also record entry of supreme court reversing the judgment in the cause as follows: “ Supreme Court of Missouri, October term, 1883. George W. Prior, plaintiff in error, - vs. Hannah Kiso, executrix of John C. Kiso, deceased, Henry Lambeth, D. B. Wilson, John L. Clark, John
Hannah C. Kiso, on the hearing of the motion, admitted that she was not, and never had been, the executrix of John C. Kiso, but was appointed and qualified as administratrix as charged in the motion in October, 1884. It was then shown and admitted by both parties that since the last December term, 1884, of that court, the plaintiff had filed in the supreme court of Missouri his motion to set aside the judgment of said court heretofore rendered against Hannah Kiso, administratrix, c. t. a., of John C. Kiso, as party defendant, which said motion was and is almost identical with the one now before the court, and was made and filed in the supreme court for the purpose of reviving the cause as now here sought. It was also admitted that the said Hannah Kiso, administratrix, upon notice given her attorney by the plaintiff, appeared in said supreme court, and then and there filed her plea to the jurisdiction of said court, and supported the same by a certified copy of her entry of appearance and motion to dismiss, and affidavit in this
In resistance of said motion, the motion of said Hannah to dismiss, her affidavit in support thereof, as well as the affidavit of her attorney, were read in her behalf. The court denied plaintiff’s motion to revive the cause as to said Hannah, as administratrix, etc. Thereupon the plaintiff filed his suggestion of the death of John C. Kiso, and applied for a scire facias against said Hannah, to show cause why the action should not be revived against her as administratrix, etc., and showed by a certificate that she was appointed administratrix, etc., on the twenty-third of October, 1884. The circuit court denied the writ; and the motion previously filed by said Hannah, to dismiss the cause as to her, coming on to be heard, was by the court granted, and the cause as to her dismissed ; and plaintiff comes here on writ of error.
The foregoing matters are set forth thus at large, in order to determine the sole point presented by the record, whether the ruling of the trial court was correct, which dismissed the cause as to said Hannah, and refused to award a scire facias against her to make her a party defendant. These facts must be regarded as established by the record: (1) That John C. Kiso died in Osage county on the twelfth day of January, 1881, leaving a will, and that no letters testamentary were granted to any one on his estate, until the twenty-third day of October, 1884, when such letters were granted to said Hannah, as administratrix with the will annexed, months after the cause had been disposed of by the
I. The acts of Belch were without warrant of authority for two reasons : first, there was no retainer or employment of him as her attorney by said Hannah, and because she had no power at the time so to retain, him; second, because the death of Belch’s constituent, Jno. C. Kiso, revoked his authority to appear further in the cause in that behalf without a new retainer from the proper legal representative of Kiso, deceased. Weeks on Att’ys, sec. 192; Gleason v. Dodd, 4 Met. [Mass.] 333.
II. If it be conceded that the same method of procedure must be adopted in this court, as in the circuit court, and persons “substituted as parties, or compelled to become parties, * * * in like time and manner, and with like effect,” as in the latter courts (R. S. secs. 3772, 3663, 3664, 3665, 3668), and if it be further conceded that the time specified in section 3668, supra, operates as a special statute of limitations, and that after the period therein limited, the action abates as to the representative of the deceased party not made party as required by article 8, Revised Statutes, 1879 (Rutherford v. Williams, 62 Mo. 252; Farrell’s Adm'r v. Brennan's Adm'x, 25 Mo. 88), still the statute in question ought not to operate in this case, because of the complications before mentioned. The proper basis for that statute was not laid. There was no order entered for the revival of the cause, as pointed out in sections 3663 and 3664, stating the name and capacity of the representative or successor of the decedent. Such an
III. But it is to be gravely doubted whether section 3668 should be held operative and applicable in the practice of this court, at least so far as concerns a case of this character. At common law the death of a sole defendant in error does not abate the writ, whether the death occurred before or after errors assigned. If it happens before, and the plaintiff will not assign errors, the executors or administrators of the defendant in error may have a scire facias guare executionem non in order to compel him ; if it happen after, they must, proceed as if the defendant in error were living till judgment be affirmed, and then revive by scire facias. And the plaintiff, in order to compel the representatives of the defendant in error to join in error, may sue out a scire facias ad audiendum errores. If, however, there be several clefendants in error, and one die, no abatement of the writ occurs, but the death being suggested on the roll, the writ of error proceeds against the survivors. 2 Tidd’s Pr. [4 Ed.] 1163, 1164. Where the death of one of a number of defendants in error occurs, this is substantially the course pointed out by the following sections of the statute:
Section 3767: “If there be several appellants or plaintiffs in error, and one or more of them die after errors assigned, or if there be several appellees or defendants in error, one or more of whom shall die after errors assigned, the appeal or writ of error shall not thereby abate, but in either of such cases, such death shall be suggested on the record, and the cause shall proceed at the suit of the surviving appellants or plaintiffs in error, or against the surviving appellee or defendant in error, as the case may be.”
' And it seems from the provisions of section 3769, that it is on.j in case of a sole defendant in error, or of all the defendants in error dying, that it becomes at all necessary to sue out scire facias to compel the representatives of the decedent or decedents to become parties, and join in error, and this is done, the section says, “in Wee manner as in an original suit” To that section, in all probability, the section 3772 applies, which refers to sections already cited, the enforcement of the provisions of which causes the action or the writ to abate. But looking over all the sections referred ■ to and comparing them carefully with the practice at common law, I am persuaded that, under those statutory provisions, where one of a number of defendants in error dies, all that it; is necessary to do is to suggest the death, and then the writ proceeds without abatement, as at common law, and that the surviving defendants in error represent, so to speale, the decedent, so that their victory enures to the benefit of his representative, and
IY. It has been urged that it does not lie in the mouth of said Hannah to deny that “ Tier attorney had no authority to appear for her.” The very point in dispute is whether he was her attorney or not. This is not a case where a judgment is the basis of the action, and it is attempted to assail it by showing that an attorney whom the record says appeared for the defendant was not his attorney ; and even if it were, there is excellent authority for saying that the fact whether the attorney was really employed by the defendant or not may be disputed, and in such case, the uncontradicted oath of his putative client will be sufficient to overcome tlieprrimafiaeie presumption of the attorney’s authority ; and this is especially true where, as here, there is no judgment to overthrow, but where everything is in fieri, and where, owing to circumstances already related, it was simply impossible for the supposed client to have conferred the supposed authority, even had she so desired.
Y. Holding then that Hannah Kiso was never made a party to this action in this court, but that it was competent to make her a party to the cause on its return to the lower court, the judgment will be reversed and the cause remanded.