Thorburn v. Gates

Decision Date17 July 1915
Citation225 F. 613
PartiesTHORBURN v. GATES.
CourtU.S. District Court — Southern District of New York

Motion to quash the service of a summons in an action at law under section 7 of the Sherman Act. The defendant is executrix of two deceased persons, who are charged jointly with the wrongful acts which resulted in damage to the plaintiff. She is a resident of Texas. The two decedents were Texans by residence and citizenship. She was appointed executrix by the proper Texas courts, who had probated the wills and are assuming administration of the two decedent estates. The summons was served in New York while the defendant was actually sojourning there. Section 1836a of the Code of Civil Procedure of New York is as follows:

'An executor or administrator duly appointed in any other state territory or district of the United States or in any foreign country may sue or be sued in any court in this state in his capacity of executor or administrator in like manner and under like restrictions as a nonresident may sue or be sued if, within twenty days after any such executor or administrator shall commence, or appear in, any action or proceeding in any court in this state or within twenty days after he shall be required or directed by summons or otherwise to appear therein, there shall be filed in the office of the clerk of the court, in which such action or proceeding shall be brought or be pending, a copy of the letters testamentary or letters of administration issued to such executor or administrator duly authenticated as prescribed by section 2704 of the code of civil procedure; in default whereof all proceedings in such action or proceeding may be stayed until such duly authenticated copy of such letters shall be so filed.'

Franklin W. M. Cutcheon and A. L. Humes, both of New York City, for the motion.

John S Wise, Jr., of New York City, opposed.

LEARNED HAND, District Judge (after stating the facts as above).

Section 7 of the Sherman Act, in providing that the defendant may be served where 'found,' did not intend to extend the scope of the process of this court. It meant to remove the existing limitations upon the venue of actions between diverse citizens and to permit the plaintiff to sue the defendant wherever he could catch him with a process good where it was executed. In this respect it differs from the provisions of the Clayton Act (Act Oct. 15, 1914, c. 321) Sec. 12, 38 Stat. 736, which gives a wider scope to the process itself. The validity of the service of this process therefore, gains nothing from the fact that the action arises under section 7 of the Sherman Act, but is to be judged quite as though it had been an ordinary civil action before the venue of suits between diverse citizens had been limited to the districts of the parties' residence.

Everybody agrees that without the aid of a statute a foreign executor might not be sued outside of the territory of the sovereign who granted his letters. This was already so well established in 1841 that Mr. Justice Story thought it unnecessary to cite much authority upon the point. Vaughan v. Northrup, 15 Pet. 1, 5, 10 L.Ed. 639; Lewis v. Parrish, 115 F. 285, 53 C.C.A. 77. The doctrine implies that the devolution of both rights and obligations, effected by the decedent's appointment and the grant of letters, is not regarded as intended for more than purposes of local administration and distribution. A gift causa mortis, a specific bequest after assent by the executor, an inherited freehold, a devise, each of these gives a title which will be recognized in other jurisdictions, because they are intended to have such an effect where they occur, and other states recognize the legal results within their own borders of what has taken place elsewhere. Such might have been equally well the view taken of the rights or obligations of the executor. As haeres factus of the Roman law, from whom he is descended, he might have had the same status as the heir at law actually obtained, and the title and obligation cast upon him might have been regarded as effecting a substitution to be recognized everywhere. Indeed, the executor has title, and the judgment against him was always regarded as personal (Stacy v. Thrasher, 6 How. 44, 60, 12 L.Ed. 337), even though the executor had the defense of plene administravit, and though his actual liability was upon the theory that he had assets in his hands, or had committed a devastavit. Had it not been for the interposition of the ordinary, it is possible that an executor might have become an heir somewhat as the heir at law; but since the Ordinary assumed always to grant letters of administration, the whole execution of the office became in some sense a public duty, finally conceived as resting wholly in the hands of the state which first undertook it. The unwillingness of other states to entertain such suits seems to be explicable only upon this interpretation of the grant of letters.

I therefore regard the doctrine as having for its necessary corollary that the whole subject of administration is in rem (Jefferson v. Beall, 117 Ala. 436, 23 So. 44, 67 Am.St.Rep. 177), and that the executor is only an official charged with the duties of management and distribution regardless of whether he be vested with title or whether the obligation to pay debts be personal. These are perhaps concessions to his historical evolution, which have now ceased to indicate existing notions. Section 1836a of the Code of Civil Procedure of New York must...

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17 cases
  • Freeman v. Bee Machine Co
    • United States
    • U.S. Supreme Court
    • June 1, 1943
    ... ... This venue provision was designed, as stated by Judge ... Page 454 ... Learned Hand in Thorburn v. Gates, D.C., 225 F. 613, 615 'to remove the existing limitations upon the venue of actions between diverse citizens 9 and to permit the plaintiff ... ...
  • Knoop v. Anderson
    • United States
    • U.S. District Court — Northern District of Iowa
    • April 8, 1947
    ...unconstitutional in so far as it attempted to make foreign representatives subject to suit in New York. In the case of Thorburn v. Gates, D.C.N.Y., 1915, 225 F. 613, the same statute came before Judge Learned Hand. In that case service was made in New York upon representatives of a Texas es......
  • Iovino v. Waterson
    • United States
    • U.S. Court of Appeals — Second Circuit
    • December 1, 1959
    ...1910, 177 F. 547; Stromeyer Co. v. Aldrich, D.C.E.D.N.Y.1915, 227 F. 960. Indeed, Judge Learned Hand's opinion in Thorburn v. Gates, D.C.E.D.N.Y.1915, 225 F. 613, was a precursor of the construction of § 1836a of the Code of Civil Procedure later adopted by Judge Cardozo in Helme v. Buckele......
  • Milam v. SOL NEWMAN COMPANY, Civ. A. No. 10102.
    • United States
    • U.S. District Court — Northern District of Alabama
    • June 12, 1962
    ...— e. g., Knoop v. Anderson, 71 F.Supp. 832 (N.D.Iowa 1947); Greer v. Ferguson, 56 Ark. 324, 19 S.W. 966 (1892). Cf. Thorburn v. Gates, 225 F. 613 (S.D.N.Y.1915) — that the jurisdiction should not be assumed because other courts need not recognize the judgment, does not seem enlightening for......
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