Oldfield v. Giblin

WASSERSTROM, Chief Judge.

Appellant filed this suit in the Circuit Court to recover for the wrongful death of his adult son who died unmarried and without children. Respondent moved for summary judgment on the grounds that appellant had no capacity to sue and that suit could only be by duly appointed personal representative of the deceased son. The trial court denied that motion on condition that appellant within thirty days open an estate for the deceased son and substitute the administrator as plaintiff. When appellant was unable to comply with those conditions, respondent moved to dismiss the action, which motion was sustained by the trial court. Appellant now appeals from that action.

The ruling in question was error. Cannada v. Moore, 578 S.W.2d 597 (Mo. banc 1979); Sybert v. Irvine, 585 S.W.2d 312 (Mo.App.1979). The order of dismissal is therefore reversed and the cause is remanded to the trial court with directions to reinstate this cause on its docket for further proceedings preparatory to a trial on the merits.

All concur.