309 F.2d 634 (8th Cir. 1962), 17012, Downie v. Pritchard
|Citation:||309 F.2d 634|
|Party Name:||Robert C. DOWNIE, Administrator of the Estate of Eugene G. Smith, Appellant, v. Mrs. Mary Ellen PRITCHARD, Wife of Charles G. Pritchard, Appellee.|
|Case Date:||November 13, 1962|
|Court:||United States Courts of Appeals, Court of Appeals for the Eighth Circuit|
John M. Harrison, Little Rock, Ark., for appellant, Joseph C. Kemp, City Atty., Little Rock, Ark., on the brief.
Sidney W. Provensal, Jr., New Orleans, La., for appellee and Amis Guthridge, Little Rock, Ark., on the brief.
Before VOGEL and VAN OOSTERHOUT, Circuit Judges, and VAN PELT, District Judge.
VAN OOSTERHOUT, Circuit Judge.
This is a timely appeal by the defendant administrator from order denying his motion to dismiss complaint upon the ground that plaintiff's admitted failure to comply with the provisions of the Arkansas non-claim statutes, Ark.Stats.§§ 62-2601 et seq., compels a dismissal of the action. We granted defendant leave to take this appeal from the interlocutory order pursuant to 28 U.S.C.A. § 1292(b).
Defendant's position in the trial court and here is that the Arkansas non-claim statutes, which set forth the requirements relating to asserting claims against decedents' estates, rather than Fed.R.Civ.P. 25(a)(1) control on the matter of the substitution of the administrator for his decedent in a pending action, and that Fed.R.Civ.P. 25(a)(1), if applicable, is invalid.
The trial court in a well-considered opinion, reported at D.C. 201 F.Supp. 893, rejected such contentions. An order was entered denying the motion to dismiss. We affirm.
The trial court's opinion adequately sets out the facts, the issues and the controlling law. We shall not attempt to retread the ground so well covered by the trial court.
This is an action brought in the United States District Court asserting a cause of action based upon federal law and is not a diversity of citizenship case. The trial court clearly demonstrates in its opinion (pp. 896-97 of 201 F.Supp.)
that the 'outcome determinative' test, discussed in Guaranty Trust Co. of New York v. York, 326, U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079, a diversity case, to the extent that it may have validity to determine whether a rule is procedural or violates substantive rights, applies only to diversity cases and has no operative effect in cases based upon federal law. The trial court correctly observes:
'The applicable test in a nondiversity action should be the criterion set out in Sibbach v. Wilson & Co., 312 U.S. 1, 61 S.Ct. 422, 89 L.Ed. 479 (1941): 'The test must be whether a rule really regulates procedure,-- the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for disregard or infraction of them.'
'Rule 25(a)(1) is merely...
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