dissenting.
I do not quarrel with the authorities which hold that the nonclaim statute, § 473.360, RSMo 1986, should be strictly applied when necessary to serve the purpose. This case, however, involves a situation not covered by any case law cited in the principal opinion, or any which I can find. Here there was pending litigation in which the decedent, Flora Myers, was a party. At the time of her death she was trying to set aside a judgment which directed her to return a substantial part of a commissioners’ award in a condemnation case, because the jury valued the condemned property far below the valuation placed on it by the commissioners. Her executor, on June 15, 1979, moved to substitute himself as executor in the pending action.
Had the executor not so moved, then the appellant Highway Commission would have been obliged to proceed in accordance with § 473.363.1, RSMo 1978, which requires a motion in the court in which the suit is pending and the filing of notice of the substitution in the probate division. Here, however, the executor assumed the initiative, no doubt to impose further resistance to the Highway Commission’s attempts at securing refund. It is reasonable to hold that the executor, by moving to substitute himself, should be held to have relieved the Highway Commission of the need to file notice of the substitution in the probate court. It is consistent with the statutory language to hold that the executor should assume the burden of filing notice of the substitution he himself initiated.
Such a holding would not impair the efficacy of the nonclaim statutes. The probate division of the circuit court does not keep books on estates, except in the process of considering settlements filed by executors. The executor of course knew of the pend-ency of the Highway Commission’s claim when he moved for the substitution and, by his motion, should be taken to have agreed to abide the final judgment in the action. The filing of notice of the substitution in the probate court serves no purpose. Such a requirement, in a case of this kind, is a purely technical one — a jumping through hoops.
There is another reason why the claim should not be held to be barred. Morgan-stein II (State Highway Commission v. Morganstein, 649 S.W.2d 485 (Mo.App.1983)), expressly directed judgment in favor of the Highway Commission and against the estate of Flora E. Myers, in the full amount of the overpayment plus *77interest. No reason is advanced as to why any defense based on the nonclaim statute could not and should not have been advanced in that proceeding. The estate’s liability, therefore, is res judicata. It is familiar doctrine that defenses available at the time of final judgment are barred by the judgment and are not available later.
I agree that the Highway Commission had notice which makes the application of Tulsa Professional Collection Services v. Pope, 485 U.S. 478, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988) unnecessary. By the same token, however, the Highway Commission should not be barred from its claim when the executor himself initiated the procedures for substituting himself for the decedent and was therefore fully informed.
It is unfortunate that the landowners and their successors are allowed to retain the grossly overvalued proceeds of the commissioners’ award, when there is, at most, an omission brought about by a highly technical reading of the governing statutes.
I would reverse and remand for determination of the merits of the claim.