Collins v. Miller, 11140.

• Decision Date: 10 July 1952
• Docket Number: No. 11140.,11140.
• Citation: 198 F.2d 948
• Parties: COLLINS v. MILLER.
• Court: U.S. Court of Appeals — District of Columbia Circuit

198 F.2d 948 (1952)

COLLINS v. MILLER.

No. 11140.

United States Court of Appeals District of Columbia Circuit.

Decided July 10, 1952.

William B. Collins, pro se.

John J. Carmody, for appellee.

Before STEPHENS, Chief Judge, WILBUR K. MILLER and BAZELON, Circuit Judges.

On Appellee's Motion to Docket and Dismiss.

STEPHENS, Chief Judge.

The question in this case is whether or not an order of the United States District Court for the District of Columbia dismissing a petition for the removal of the administrators of the estate of a decedent is appealable. The order was entered May 29, 1951.

The question arises as follows: On June 27, 1946, letters of administration of the estate of James L. Collins, deceased, were issued by the District Court to Charles Perry Miller, Jr., and to Roy M. Perry. Miller is the present appellee; Perry was named an appellee, but died pending the appeal. On October 26, 1950, the appellant, William B. Collins, filed a petition in the District Court alleging, in substance and effect, the following:

William B. Collins is "one of the heirs and/or next of kin" of the decedent, James L. Collins. The administrators Miller and Perry failed during the period of four and one-half years following the issuance of letters of administration to file an inventory and account as required by law. The administrators Miller and Perry transferred to the estate of the decedent, James L. Collins, only the sum of $34,184.46 out of a total of $44,349.62 due said decedent out of the properties of Jeremiah J. Collins, deceased, of whose estate Miller and Perry were also administrators. The administrators Miller and Perry failed to invest in United States bonds, as ordered by the District Court, the sum of $50,000 out of the funds of the decedent, James L. Collins.

As a basis for the relief sought the petition referred to numerous provisions of the District of Columbia Code of 1940 and to Rules of the District Court allegedly implementing the same. In particular the petition relied upon Title 18-401, requiring an administrator, within two months after his appointment, to make and return, upon oath, into court a true inventory of all the goods, chattels, moneys and credits of the deceased which are by law to be administered and shall have come to his possession or knowledge; Title 20-601, requiring every administrator to render to the probate court within twelve months from the date of his letters of administration the first account of his administration; Title 20-602, requiring the administrator from time to time to render other accounts, if the first account should not show the estate which was on hand to be fully administered; Title 20-604, requiring the account returned to state the assets which have come to the administrator's hands, according to the inventory; Title 20-605, requiring the account returned to state the disbursements made by the administrator; Title 20-603, providing that: "If an . . . administrator shall fail to return an account within the time limited by law or fixed by the rules of court, or within such further time as the probate court shall allow, his letters, on application of any person interested, may be revoked and administration granted at the discretion of the court"; Rule 46(b) of the District Court providing that if a proper inventory or account is not filed by a fiduciary within the time prescribed, the Register of Wills shall promptly inform the court, which upon a summary hearing shall remove the fiduciary and appoint a successor, unless for good cause shown the failure is deemed excusable. The petition prayed for the removal of Miller and Perry as administrators and for the appointment of a solvent and competent successor administrator, prayed that because of the alleged derelictions in the performance of their duties nothing be allowed in fees to Miller and Perry, and prayed that upon removal as administrators Miller and Perry be required forthwith to account to their successor. Miller and Perry filed an answer to the appellant's petition. After intermediate orders entered by the District Court which we need not consider, the order of May 29, 1951, dismissing the petition was entered. This appeal was then taken from that order. Thereafter Miller and Perry, as appellees, filed a motion to dismiss the appeal upon the ground that the order is interlocutory in character and that no appeal lies therefrom to this court.

Section 1291 of 28 U.S.C. provides, so far as here pertinent, that "The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States . . .." We think that within the meaning of that section, as construed and applied by the Supreme Court in Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1 (1951), Swift & Co. v. Compania Caribe, 339 U.S. 684, 70 S.Ct. 861, 94 L.Ed. 1206 (1950), and Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), the order of May 29, 1951, is a final decision of the District Court and is therefore one appealable to a United States Court of Appeals. In Cohen v. Beneficial Loan Corp., the ultimate question was whether a federal court having jurisdiction of a stockholder's derivative action only because the parties to the suit were of diverse citizenship must apply a statute of the forum state which made the plaintiff, if unsuccessful, liable for the reasonable expenses, including attorneys' fees, of the defense and entitled the corporate defendant to require security for their payment. The corporate defendant moved in the United States District Court for New Jersey, wherein the derivative action had been filed, to require security. That District Court was of the opinion that the state statute was not applicable to a derivative action when pending in a federal court. The Court of Appeals for the Third Circuit took a contrary view and reversed. On appeal to the Supreme Court a threshold question was whether or not the District Court's order refusing to apply the statute was appealable. The Supreme Court held that it was. In so ruling it expressed itself, in an opinion written for the Court by Mr. Justice Jackson (Mr. Justice Frankfurter and Mr. Justice Douglas dissenting in part, Mr. Justice Rutledge dissenting), as follows:

Title 28 U.S.C. § 1291 provides, as did its predecessors, for appeal only `from all final decisions of the district courts,' except when direct appeal to this Court is provided. Section 1292 allows appeals also from certain interlocutory orders, decrees and judgments, not material to this case except as they indicate the purpose to allow appeals from orders other than final judgments when they have a final and irreparable effect on the rights of the parties. It is obvious that, if Congress had allowed appeals only from those final judgments which terminate an action, this order would not be appealable.

The effect of the statute is to disallow appeal from any decision which is tentative, informal or incomplete. Appeal gives the upper court a power of review, not one of intervention. So long as the matter remains open, unfinished or inconclusive, there may be no intrusion by appeal. But the District Court's action upon this application was concluded and closed and its decision final in that...