Murphy v. Redmond

46 Mo. 317

Opinion

Currier, Judge,

delivered the opinion of the court.

Upon the recovery of a verdict by the plaintiff in the Circuit Court, the defendant moved to set the same aside and for a new trial. The cause was then continued t’o -the next term of the court.- At the term to which the cause stood continued, the death of the plaintiff was suggested and entered of record. No action was taken to bring in the dead party’s representatives, nor did they appear voluntarily. The court nevertheless, without such appearance, and without the issue of a scire facias, proceeded at once to act upon the defendant’s motion for a new trial, and overruled it, and th^n granted an appeal to the District Court, where the judgment was affirmed, and the defendant now brings the case here by writ of error.

All the proceedings in the lower court, subsequently to the suggestion of the death of the plaintiff, were ex parte and unwarranted. There was no party plaintiff “in court. No steps could therefore be properly taken in the cause until that deficiency was supplied, either by the voluntary appearance of the deceased’s representatives, or upon scire facias. Until that was done the effect of the death of the plaintiff was to suspend all further proceedings. (Hopkins v. Dysart, 36 Mo. 47; Fine v. Gray, 19 Mo. 33; Jarvis v. Felch, 14 Abb. Pr. 46; Warren v. Eddy, 13 Abb. Pr. 28; Reed v. Butler, 11 Abb. Pr. 128.) The overruling of the motion for a new trial (and it might with equal propriety have been sustained,' so far as the regularity of the court’s action was concerned) and the granting of the appeal were irregular and ineffective — mere nullities. The District Court acted upon an appeal when there was no respondent, and the cause has not lost its ex parte character by being brought here upon a writ of error. There is still but one party in court. The legal representatives of the dead man are not here. In this attitude of the case we do not feel called upon to pass judgment upon any idterior questions which might arise if there were proper parties before us. The appeal was unauthorized and was improperly granted, for the reasons already stated. It must therefore be dismissed.

The other judges concur.