On Motions for Rehearing
PER CURIAM.The motions for rehearing and to transfer to the Supreme Court indicate some doubt as to our exact rulings in the principal opinion. So that there may be no misconception as to the holdings in the principal opinion we state briefly the following holdings:
First, when a sole defendant in a Justice or Magistrate Court case dies, the action is abated. Neuman v. Weinstein, 230 Mo.App. 794, 75 S.W.2d 871.
Second, if such death and abatement occur after judgment for plaintiff, but before the appeal period has expired, or if an effective appeal is taken, before same has been finally determined, such judgment is not a final adjudication or final determination or final judgment.
Third, under either of these circumstances, the case must go to the Probate Court for final adjudication, or else in a proper case a new action must be brought in the Circuit Court if that court has concurrent jurisdiction with the Probate Court.
Fourth, unless the procedure just outlined is followed, then under the no-claim statute, such claim or cause of action against the deceased defendant is lost in so far as the liability of such defendant and his estate is concerned.
Fifth, the insurance liability contract herein provided that the company (except as to settlements it made) would pay only those claims or judgments which had been finally determined or finally adjudicated against and were settled liabilities of the insured (or his estate).
To require the company to pay when neither the insured nor his estate could be required to pay, regardless of the estate assets, would, as held by this court in Stedem v. Jewish Memorial Hospital Ass’n of Kansas City, 239 Mo.App. 38, 187 S.W. 2d 469, 471, be rewriting, enlarging and extending the contract. Moreover, any other result under our particular facts would actually deny the defendant and anyone else for him, the right of appeal and review. Such a result would amount to neither reason nor justice.
The motion for rehearing and motion to transfer are denied.