35 F. 691 (W.D.Tenn. 1888), Warren v. Furstenheim

Citation:35 F. 691
Party Name:WARREN et al. v. FURSTENHEIM.
Case Date:July 09, 1888
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 691

35 F. 691 (W.D.Tenn. 1888)

WARREN et al.



United States Circuit Court, W.D. Tennessee.

July 9, 1888

Wright & Turley, for the motion.

Metcalf & Walker, contra.


Damages are claimed for alleged misrepresentations by the defendant concerning a firm of merchants to whom the plaintiffs gave credits that have been lost. There was a mistrial before a jury, and afterwards the defendant died. The motion for a revival of the suit is resisted upon the ground that the 'cause of action' does not 'survive by law' against the defendant's executor. Rev. St. Sec. 955. If the decision of the question of the right of revival depended upon the determination of the law of Tennessee as to the survival of a cause of action like this as contradistinguished from the right of a plaintiff to revive a suit already commenced, it must be confessed that the subject would be involved in the greatest obscurity and doubt. The position of the defendant's executor is that, by the very terms of the act of congress above cited, it is required that the cause of action shall survive before a suit in the federal court can be revived by or against an executor or administrator; that, congress having prescribed this rule for the revival of suits in the courts of the United States, it is wholly immaterial that the state of Tennessee has prescribed a different rule concerning suits in the courts of that state, the legislation of congress being necessarily exclusive; and that as this cause of action could not, under the law of Tennessee, be originally brought against an executor, this suit must abate. This is a very strong position, which is supported by a line of reasoning conclusive of its soundness as well as by all the authorities construing the act

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of congress, and it would be a successful defense to this motion were it not for the peculiarity of the law of Tennessee that 'a cause of action' already imbedded in a suit commenced does survive to or against an executor, whether it would have so survived if suit had not been commenced, or not. In other words, a 'cause of action' may abate, in Tennessee, so that no suit may be brought upon it by or against an executor or administrator, and yet it does not at all abate if a suit has been brought before that death occurs, which otherwise would have abated the cause of action. This is a reversal of the ordinary rule upon the subject, and of that which prevailed in this state prior to the act of 1836, c. 77, Car. & N. Tenn. St. p. 68; Thomp. & S. Code, Secs. 2845, 2846; Mill. & V. Code, Sec. 3559 et seq.

This is admitted by defendant's counsel as to suits in the state court, but they insist that the act of congress imposes a different rule on our federal courts, by referring the right of the revival of a suit in those courts to the test of the survivability of the cause of action, and not the test of the right of revival of a suit which might have been brought in another tribunal, but was not. If we keep in view the distinction between the survival of a cause of action and the revival of a suit brought upon it, so much insisted upon by defendant, the fallacy of this contention will appear, unless we are again confused by the fact that, owing to the peculiarity of our local law, already mentioned, the one sometimes depends upon the other, and the two are yet in such cases to be kept entirely separate and distinct, in applying this act of congress. The right to revive this suit in no sense depends upon the right which would have existed in the plaintiffs to revive the self-same suit if it had been brought in a state court of competent jurisdiction; but it is because the requirement of the act of congress has been met, and the identical 'cause of action' upon which this suit is founded 'survives by law,' that the right of revival has attached. It can make no difference that this survival of the cause of action depends upon the condition precedent that a suit shall have been brought upon it in the life-time of the alleged tort-feasor; for the legislature of the state may attach whatever condition it chooses, establish whatever exceptions it may wish, and in whole and in part create and regulate the right of property involved; and that is precisely what this is. And by this local law, whatever it may be, the federal courts are bound, just as they are in administering any other rights of property created by local legislation. Nor can it make any difference that other causes of action precisely like this, upon which no suits have been brought, do not survive by reason of that fact; for it is this cause of action,-- the one which is embodied in this suit, and not any other cause of action,-- which must survive to save the right of revival of the suit, under the act of congress; and this survives because of the existence of the very suit to be revived, and not because of any other fact whatever. The act of the state legislature does not prescribe as a condition that the suit, the bringing of which breathes the breath of survivability into the nostrils of 'the cause of action' embodied in it, shall be brought in the state court, to have that quality. To read it so would

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be to attach another condition than the statute mentions. It is certainly true that a suit brought in another state would not conform to the condition and create the quality of survivability, because the legislation of the state would not be potential in that direction; but, as to the federal domain, it has potentiality in creating rights of property to be there observed, and this by the federal constitution and acts of congress in that behalf, and to that extent, and in such behalf, the federal courts become pro hac, the same as the state courts. This is a familiar principle of wide extent, recognizable everywhere, and by its operation this cause of action survives as a right of property...

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