Doering v. Kenamore

Biggs, J.,

delivered the opinion of the court.

This is an action of replevin brought against Grant A. Kenamore. The defendant died in the latter part of December, 1885. At the April term, 1886, of the circuit court, the plaintiff suggested the death of defendant, and on plaintiff ’ s motion, a scire facias was issued against one G. R. Kenamore, returnable to the October term, 1886, requiring G. R. Kenamore to show cause why he should not be made a party defendant to the action. This scire facias was served on September 13, 1886. At the October term, 1887, the following record entry appears, to-wit: “ This suit is revived against G. R. Kenamore, administrator of estate of G. A. Kenamore and cause continued.” At the October term, 1888, on motion of the attorneys who represented the deceased prior to his death, the court abated the suit. The court, in sustaining the motion found that more than three terms had elapsed since the suggestion of the death of Grant A. Kenamore and that no scire facias had issued against his administrator.

At the same term plaintiff appeared, and moved the court to set aside the order of dismissal. The court overruled plaintiff’s motion and thereupon he tendered his bill of exceptions and appealed the case to this court.

At the time of the service of the scire facias on G. R. Kenamore, he was not the administrator of Grant A. Kenamore, but several months afterwards he was, by the probate court, appointed administrator of the estate of the deceased. His appointment was made on the tenth day of March, 1887. If we correctly understand the- contention of appellant’s counsel, it is, that the service on G. R. Kenamore in September, 1886, was sufficient to sustain the subsequent order of court reviving suit against him as administrator although he was not appointed administrator until several months after the date of service.

We do not think this position can be successfully defended.

The service of a summons on a party in his individual capacity gives the court no jurisdiction over him in his representative capacity. Blodgett v. Schaffer, 94 Mo. 652. The scire facias was directed to G. R. Kenamore as an individual, and if he had been administrator at the time of the service, it would not have authorized the court to make an order of revival against him as administrator. Therefore, the order of the court reviving the suit against G. R. Kenamore as administrator was made without the service of any notice and was a nullity. Appellant complains that the attorneys who originally represented the deceased had no authority to lile a motion to dismiss the case for want of prosecution. There is nothing in this objection, because the motion was not necessary. Ranney v. Bostic, 15 Mo, 216. The statute is imperative and provides that the suit shall be dismissed unless the law has been complied with. Any order that the court might make after the expiration of the time, looking to the further prosecution of the suit, would bind no one.

We can see no reason why the judgment in this case should be disturbed. The judgment will, therefore, be affirmed.

All the judges concur.