Schmelzer v. Central Furniture Co., 252 Mo. 12

252 Mo. 12 | Mo. | 1913

BBOWN, P. J.

Action for damages caused by the alleged wrongful death of plaintiff’s husband. From a judgment for defendant, plaintiff appeals.

On December 1, 1906, Frank Schmelzer, plaintiff’s husband, was employed by defendant to pile lumber and perform other labor in and about tbe yard of defendant’s furniture factory in tbe city of St. Louis.

Defendant, being engaged in remodeling and repairing tbe fourth story of its factory found some shelving or boards which were unfit for further use, and caused one of its employees to throw said boards out of the windows of said factory. One of tbe boards thus thrown out struck plaintiff’s husband, causing his death about two years later. The husband of plaintiff during his lifetime instituted a suit in the circuit court of St. Louis city to' recover damages from defendant for the identical injury pleaded in the present action.

In the former action the plaintiff’s husband recovered judgment against defendant, but upon appeal by defendant to the St. Louis Court of Appeals that judgment was reversed. [Schmelzer v. Furniture Co., 134 Mo. App. 493.]

In the case at bar (brought after the death of her husband) plaintiff has pleaded additional acts of negligence on the part of defendant not mentioned in the former case, but which additional acts of negligence are charged to have been the proximate cause of her husband’s death. Upon a careful examination of the evidence in this case we find that none of said additional . acts of negligence pleaded by plaintiff were proven. We further find that said St. Louis Court of Appeals heard and determined the former case upon its merits and reversed the judgment, which plaintiff's husband had recovered, on the ground that the injury received by Schmelzer was caused by the negligent act of a fellow-servant, “his own negligence con--curring therein.”

Among the defenses interposed by defendant' in this case is the plea of res adjudicata, based upon the petition, answer, reply and judgment in the former action by plaintiff’s husband.

Plaintiff’s reply to said plea of res ad judicata is a general denial. No attack is made by plaintiff in her pleadings in this canse upon the sufficiency of the pleadings or judgment in the action by her husband before mentioned.

The evidence shows that the appeal in said former case was taken and duly submitted to said Court of Appeals while plaintiff’s husband was yet living, but no suggestion of his death was made to said Court of Appeals, and the cause was not revived in the name of his wife or any other person before the entry of the final judgment in that action.

At the close of plaintiff’s evidence the trial court directed a verdict for defendant.

I. Plaintiff concedes that if a final and valid Transmitted Cause of Action. judgment on the merits had been rendered against her husband in the former case she could not recover in this action. This is undoubtedly true. [Strode v. St. Louis Transit Co., 197 Mo. 616; Strottman v. Railroad, 228 Mo. 154.]

II. Plaintiff’s attorney, however insists that the judgment against her husband is void because the Judgment Against Dead man. same was entered by the St. Louis Court Appeals fifteen days after he died and without any suggestion of death, and with-yie cailse being revived in the name of his widow, children or administrator. He cites: Murphy v. Redmond, 46 Mo. 317; Gamble v. Daugherty, 71 Mo. 599, and Crawford v. Railroad, 171 Mo. 68. These cases lend some color to plaintiff’s insistence, but a close examination discloses the fact that in each of those actions knowledge was brought home to the court by suggestion of death, or otherwise, that the litigant had died before judgment was entered against Mm. Those cases' are, therefore, different from the case at bar, for here there was no suggestion of Schmelzer’s death. The, appeal was regularly submitted during his lifetime and the Court of Apeáis possessed no knowledge of Ms death when it determined the action and reversed his judgment.

It is true that when one of the parties to an action dies while such action is pending in an appellate court the law directs that the death of such litigant shall be suggested to the appellate court and the cause revived against his legal representative before further proceedings are had. [Sec. 2075 and 2076, R. S. 1909.] Our statutes also require the same procedure (varying only in unimportant details) upon the death of a party to an action pending in a trial court. [Art. 10, Chap. 21, R. S. 1909.] It is axiomatic that courts must acquire jurisdiction of the parties to actions before they can lawfully adjudicate the matters in controversy in such actions; and as no court can compel a dead man to answer its processes a judgment obtained against one who was dead when the action was instituted is a nullity.

The general rule, however, is that when living parties enter their appearance in court, or be brought in by process, the court then having complete jurisdiction of their persons and the cause of action, a subsequent failure to comply with the requirements of the statute does not render a judgment entered therein void, but only voidable.

In the case of Charley v. Kelley, 120 Mo. 134, a minor defendant was brought into court by an order of publication. The law then, as now, required the trial court to appoint a guardian ad litem for such defendant before proceeding to try the action (Sec. 1747, R. S. 1909); but in that case the court rendered judgment against said minor defendant without appointing a guardian for him, and it was held that the judgment was only voidable and a sale nnder it passed tbe title of tbe minor defendant.

Mr. Freeman in bis work on Judgments (4 Ed.), vol. 1, sec. 153, says:

“If an action is begun by or against living parties, over whom tbe court obtains jurisdiction, and some of them subsequently die, it is not thereby deprived of its jurisdiction; and while it ought not to proceed to judgment without making the representatives or successors in interest of the- deceased party parties to the action, yet if it does so proceed its ac- • tion is irregular merely, and its judgment is not void.”

In the recent well-considered case of State ex rel. v. Riley, 219 Mo. 667, this court In Banc followed the above quoted rule of law announced by Mr. Freeman. TJpon a careful review of the matter we hold that the judgment of reversal entered against plaintiff’s husband by the St. Louis Court of Appeals is not void.

III. The Missouri cases before cited sustain the proposition that a voidable judgment has all the force Voidable Judgment and effect of a valid judgment until it is set as^e or reversed. That rule seems to be almost universal in the American States. Black in his splendid work on Judgments (2 Ed.), vol. 2, sec. 513, says:

“Where the court has jurisdiction of the subject-matter and the parties, and where jurisdiction attaches in the particular case and authorizes the particular adjudication made, its judgment, although it may be voidable for irregularities, or liable to be reversed or set aside for errors in law or fact, is binding and conclusive upon the parties until its effect is •destroyed in some regular proceeding for that purpose.”

We, therefore, hold that the final judgment of the St. Louis Court of Appeals reversing the judgment theretofore obtained by plaintiff’s husband is a bar to the prosecution of the present action, and the trial court properly directed a verdict for defendant. Its judgment is therefore affirmed.

Faris and Walker, JJ., concur.