(dissenting).
I respectfully dissent from the principal opinion in this case. As I understand the issues there is no contention that the method used in obtaining service on relator was illegal. In that connection relator’s counsel stated at the time of oral argument that no question of service is involved in this proceeding but that the question for decision is, in effect, whether a Missouri court has jurisdiction to order substitution of relator in view of the constitutional provisions he contends should be applied (Article IV, §§ 1 and 2, and the Fourteenth Amendment, § 1, of the Constitution of the United States, and Article I, § 10, Constitution of Missouri 1945).
It is provided in Civil Rule 52.12(a) that if a party dies “the court shall on motion order substitution of the proper parties.” I think our decision as to whether relator is a proper party to be substituted in the Curry case should depend on the precise factual situation here presented. In considering that question we should consider the fact that deceased saw fit to enter his appearance in the Curry suit and in so doing obtained the release of his attached property; that deceased defended the Missouri action in both the Circuit and Supreme Court, and that in this court a final judgment was entered against said defendant on the question of liability under Count III and the case was remanded for further trial proceedings.
I think the activities of deceased in the Curry case were a sufficient contact with Missouri and its courts that the continuation of the suit against his executor would not offend “traditional notions of fair play and substantial justice.” International Shoe Co. v. State of Washington, etc., 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95. See also McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223. Moreover, it is reasonable to say that when deceased entered his appearance in the case and litigated to the extent heretofore indicated he is deemed to have consented that his executor be subject to the jurisdiction of the court the same as he was. See Iovino v. Waterson, 274 F.2d 41, 79 A.L.R.2d 519 (2d Cir.). I also have the view that since one important phase of the case had been finally adjudicated prior to the death of defendant his executor (whether resident or nonresident) should be bound by that judgment, and the only reasonable method of procedure in that event is to *364substitute the executor as the defendant and conclude all issues in the case. See Restatement, Conflict of Laws, § 517.
Summarizing, I would hold that the substitution of relator for the deceased defendant in the Curry case is authorized by Civil Rule 52.12, and that relator is a “proper party” for substitution under the provisions of that rule; that the rule, when so construed, does not deny due process nor violate any of the other constitutional safeguards mentioned; and that the court has jurisdiction to order substitution of relator and that such an order will not offend “traditional notions of fair play and substantial justice.”