Original Proceeding in Prohibition Preliminary Writ Made Absolute
Motion for Rehearing Overruled, Transfer Denied August 29, 1983. Application Denied October 18, 1983.
Before Satz, P.j., Snyder, Dowd, JJ.
The opinion of the court was delivered by: Snyder
This is prohibition in which relators' request this court to find respondent Judge lacks jurisdiction to deny their motion to dismiss plaintiff's first amended petition for failure to substitute a party plaintiff within 90 days of the filing of the suggestion of death of the original plaintiff under Rule 52.13(a)(1). A preliminary writ in prohibition was issued by the court on April 18, 1983. The preliminary writ is now made absolute.
The underlying action is a proceeding under the will contest statute, § 473.083 RSMo. 1978, captioned Doris N. Giffin, plaintiff, vs. Jessie Bradley, et al., defendants, St. Francois County Circuit Court number CV579-325CC.
Plaintiff filed her first amended petition to establish a lost will on October 3, 1981. Defendants (relators) filed their motion to dismiss on November 10, 1981. The motion to dismiss was set for hearing on July 8, 1982. The motion was argued and relators were allowed fifteen days to file a memorandum in support of their motion to dismiss and plaintiff allowed fifteen additional days to reply. Relators filed their memorandum on July 12, 1982. None was filed by plaintiff.
In the meanwhile, sole plaintiff Doris N. Giffin had died. A suggestion of her death was filed by counsel for relators on July 8, 1982.
Relators filed their motion to dismiss for failure to substitute a party plaintiff on October 26, 1982. On October 29, 1982, the personal representative of the deceased plaintiff filed her motion and notice to substitute party plaintiff.
On March 10, 1983 all pending motions were argued and respondent Judge indicated that he would overrule all of relators' motions and order a substitution in accordance with the motion to substitute parties.
The parties agree that Rule 52.13(a)(1) is applicable. The rule mandates dismissal without prejudice as to the deceased party unless a motion for substitution is served within 90 days after a suggestion of death is filed. Plaintiff's motion was filed on October 29, 1982, 113 days after the suggestion of death was filed on July 8, 1982.
Respondent bases his argument that the preliminary writ should be quashed on two separate portions of the record in his court. He states first that there was an oral motion made on July 8, 1982, and that the written motion of October 29, 1982 relates back to the oral motion. The only thing in the record to support this argument is the docket sheet memorandum made pursuant to the hearing on July 8, 1982 which says in part: "Upon suggestion of death, plaintiff granted fifteen days to file appropriate motions for substitution of parties and to add parties."
Respondent also argues that certain language in a memorandum in support of their motion to dismiss which was filed by relators constitutes a motion for substitution of parties. The language is:
"The issue has arisen as to whether plaintiff should be allowed to substitute another person as party plaintiff."
"Plaintiff's counsel argues that Doris Giffin's interest under the will is a vested interest thereby entitling him to substitute her ...