1. REVIVOR: Death After Submission of Case. A cause need not be revived against the legal representatives of one of several appellants or respondents who dies after the submission of the cause in this court. In such event, even where the death of a party has been suggested, the surviving appellants or responents, as the case may be, represent the decedent, and the cause may proceed to judgment in this court the same as if his death had not occurred.
2. ____: ____: Directory Statute. The provision of the statute (Sec. 1506, R.S. 1919) that where one of several appellants or respondents dies "after the cause is submitted" in this court his "death shall be suggested on the record" performs no practical function, but is simply directory. The surviving appellants or respondents represent the decedent, and the cause is not abated by his death, nor is the bringing in of his legal representatives necessary to a valid judgment.
3. ____: ____: Suggestion of Death: Waiver. If it is the duty of any one to suggest the death of a respondent who has died after the cause has been submitted in this court, that duty devolves as much upon the surviving respondents as upon appellant; and a failure of the surviving respondents, although the judgment in their favor is reversed, to suggest his death, or to object to the judgment of reversal because his death was not suggested during the term at which the cause was decided, is a waiver of the error, if any there was, in failing to suggest his death before the cause was decided.
4. ____: Reversal With Directions: Jurisdiction of Circuit Court. The circuit court has no jurisdiction over a cause after it has been appealed to and decided by this court except to obey the mandate of this court; and where an appeal was taken by plaintiff from a judgment against him and in favor of several defendants, and after the cause was submitted in this court one of the defendants died and the case here proceeded to judgment, without any suggestion of his death, resulting in a reversal of the judgment and a remand to the trial court with directions to enter judgment for the plaintiff, the circuit court had jurisdiction to enter judgment according to said mandate, and having done so it had no jurisdiction to sustain a motion for a new trial thereafter filed by the surviving defendants, based on the ground that said decedent had died after the cause was submitted in this court and the case was decided without any suggestion upon the record of his death, but it was its duty to overrule said motion, and permit the first judgment entered in accordance with the mandate to stand.
Headnotes 1 to 4: Appeal and Error: 1 and 2, 3 C.J. sec. 987 (1926 Anno); 3, 3 C.J. sec. 993 (1926 Anno); 4, 4 C.J. secs. 3270, 3271, 3273.
SMALL, C.
This case was here before ( 299 Mo. 147) and was brought by plaintiff against John Bushakra and Salima Bushakra, his wife, and C.W. German, Trustee, to set aside a note held by said defendant Salima for $2800, secured by deed of trust on certain real estate in Kansas City, and also to set aside the conveyance of said property from said John Bushakra to her and by her to others who executed to her said note and deed of trust, as in fraud of plaintiff's rights as a judgment creditor of said John Bushakra.
The lower court held against plaintiff and that said $2800 note and deed of trust were a valid incumbrance on said property as against the plaintiff, but on appeal to this court we reversed said judgment, holding that said note and deed of trust were fraudulent and void as against plaintiff, as claimed by him, and directed the lower court to enter judgment for plaintiff subjecting said property to the plaintiff's judgment, subject to the dower of said Salima in said real estate. Our mandate was as follows:
"We therefore reverse the judgment, with directions to the lower court to set aside its judgment herein, and enter up judgment for plaintiff, as prayed in his petition, but reserving to the defendant Salima Bushakra her right of dower in said property, as the wife of defendant John Bushakra, and that said property be sold to satisfy plaintiff's judgment, or so much thereof as remains unpaid as the property of said John Bushakra, subject to his said wife's right of dower."
After our mandate reached the circuit court and on August 27, 1923, that court entered judgment for plaintiff, as commanded by our said mandate. Said judgment also recited that plaintiff "now suggests the death of defendant John Bushakra on or about the 20th day of May, 1923, after the hearing and submission of said cause on January 5, 1923, in the Supreme Court on plaintiff's appeal herein." Within four days after entry of said judgment, the defendants, Salima Bushakra and C.W. German, trustee in said deed of trust, filed a motion for new trial and in arrest of judgment, which was, on October 20, 1923, sustained "for the reason that there has been no revivor of this cause as to defendant John Bushakra. It is therefore ordered by the court that the decree rendered in this cause be, and same is, set aside and for naught held and that this cause be and the same is hereby re-instated on the docket of this court." From this action of the court the plaintiff again appealed to this court.
I. The action of the court was obviously erroneous. The statute (Sec. 1506, R.S. 1919) provides as follows: "If there be several appellants or plaintiffs in error, and one or Revivor: After more of them die after the cause is submitted, or Submission. if there be several appellees or defendants in error, one or more of whom shall die after the cause is submitted, 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 appellant or plaintiff in error, or against the surviving appellee or defendant in error, as the case may be."
Under this Statute it has often been held that a cause need not be revived against the representatives of one of several appellants or appellees who die after the submission of the cause in this court, but in that event where his death has been suggested the surviving appellants or appellees, as the case may be, represent the decedent and the cause may proceed to judgment in this court the same as if no such death had occurred. [Hunleth v. Leahy, 146 Mo. 415; Reed v. Colp, 213 Mo. 577; Reineman v. Larkin, 222 Mo. 156.]
II. If no revivor need be made in such cases upon the suggestion of the death of one of several appellants or appellees we see no practical function that such suggestion can perform or office it can fulfill. The provision as to suggesting the death of one of such several appellants or appellees after Directory the cause is submitted is therefor simply directory Statute. because no action of any kind is required to be taken by the court or the parties upon such suggestion and the surviving co-appellants or co-appellees by virtue of the statutes represent the decedent.
III. Furthermore, if it was anybody's duty to suggest the death of said John Bushakra after the cause was submitted in this court, it was as much the duty of his surviving co-appellees as that of the appellant and a failure to suggest his death Waiver. in this court or object to our judgment because it was not suggested during the term at which the cause was decided, waived the error, if any there was, in failing to suggest it before the cause was decided by us.
IV. Furthermore, a circuit court has no jurisdiction over a cause after it is appealed to this court, except to obey the mandate of this court, which, in this case, was to enter judgment as prayed in the plaintiff's petition subjecting the property to plaintiff's judgment subject to the widow's dower. This is elementary and necessary to the proper functioning of this court as a court of final appellate jurisdiction. [Rees v. McDaniel, 131 Mo. 681-82; Powell v. Bowen, 240 S.W. 1085-87; Stump v. Hornback, 109 Mo. 277.] This the learned lower court did in rendering judgment pursuant to our mandate on August 27, 1923, but was in error in subsequently, on October 20, 1923, sustaining the motion for new trial of defendant Salima Bushakra and C.W. German, trustee, and setting aside the decree previously rendered in said cause and re-instating the same on the docket of said court.
We therefore reverse the order of said court appealed from, with directions to said court to set aside said order and re-enter and re-instate its judgment of August 27, 1923, enforcing and carrying out our mandate in said cause. Lindsay, C., concurs.
PER CURIAM:
The foregoing opinion by SMALL, C., is adopted as the opinion of the court. All of the judges concur.