Wagner v. Shelly

ON MOTION FOR REHEARING In his motion for rehearing respondent states that our opinion is in conflict with the decision of the Supreme Court in the case of Wormington v. City of Monett, 204 S.W.2d 264, because *Page 553 there was no order of substitution made within a year after the death of Solon S. Shelly. The record discloses that the motion coram nobis of defendant, Solon S. Shelly, was under advisement by the court at the time he died on April 30, 1946, and that plaintiff filed his motion for substitution on July 23, 1946; and the order sustaining the motion and making substitution was entered on October 12, 1946. Thus the motion was filed and the order made within the year and this fully complies with Sec. 22 of the Civil Code, Laws Mo. 1943, p. 364, and is not in conflict with the Supreme Court decision above cited. We think the executrix, Rhea Mertel Shelly, has waived the question of service of plaintiff's motion for substitution but, if not, the motion is still pending and was filed within theyear, and that is sufficient, because Sec. 22, supra, does not require the order of substitution to be made within the year; and the holding in the Wormington case, supra, does not so hold. The motion for rehearing and the motion to transfer to the Supreme Court are overruled. All concur.