Warren v. Furstenheim

• Decision Date: 09 July 1888
• Citation: 35 F. 691
• Parties: WARREN et al. v. FURSTENHEIM.
• Court: U.S. District Court — Western District of Tennessee

35 F. 691

WARREN et al. v. FURSTENHEIM.

United States Circuit Court, W.D. Tennessee.

July 9, 1888

Wright & Turley, for the motion.

Metcalf & Walker, contra.

HAMMOND J.

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 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 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 in the plaintiffs as fully as it would have done if they had brought this suit in a state court. It would be a monstrous miscarriage of justice if there should be any difference between the two so that this right of property would exist in one court, and in the other; and, although it may be freely conceded that such a monstrosity is not impossible under our dual system of government, and we have some established differences that are quite as monstrous perhaps, yet congress has been careful not to cultivate such a state of the law, but to provide against it; and the courts will never, by construction of an act of congress, establish it if that can be avoided. Nothing but the positive language of a statute would receive that construction, I imagine.

Having reached this conclusion, it becomes unnecessary to decide whether a cause of action for deceit like this survives in Tennessee when no suit has been commenced in the life-time of the parties to the transaction about which the complaint is made, although it would not be improper, perhaps, to express an opinion upon it, since, if it does survive, the plaintiffs here would be entitled to a revival of this suit without regard to the point already determined, and the question is therefore technically involved in this motion. I shall not, however, burden this opinion with its consideration, but have assumed for the purposes of this motion that it does not survive.

In support of the ruling here made the first essential observation is to note with emphasis the distinction between the abatement of a suit by the death of one or both of the parties to it, and the abatement of a cause of action by force of the maxim, actio personalis moritur cum persona. Broom, Leg. Max. 904. The first is a matter of procedure purely so; and congress has made its own rule, as it may, and by the practice conformity act likewise adopted the state practice where its own legislation does not control. At common law, every suit, whether founded on contract or tort, abated by the death of either party, and could proceed no further. It absolutely perished. One class of English statutes having the force of common law with us abrogated this rule, and allowed the executor or administrator to come in voluntarily, or be brought in by scire facias, 17 Car. II. c. 8; 8 & 9 W. 3, c. 11; Fost. Sci. Fa. 174, 186-200. It was a condition of these statutes that the revival could take place only 'if such action might be originally prosecuted, or maintained by or against the executors or administrators of the party dying,' (Id. 187;) that is to say, provided the 'cause of action' should be unaffected by the deadly force of the above-mentioned maxim. Now, where or when it was so unaffected was and is to this day one of the most perplexing subjects with which the courts have had to deal; because another class of English statutes modified the maxim, and it was, under their influence, still more restricted by judicial decision or opinion, the decision and dicta of Lord MANSFIELD in Hambly v. Trott, 1 Cowp. 371, being, perhaps, the basis or starting point of most of the modern decisions upon the subject, as well as of most of the legislation in relation thereto. But, one has only to read such judgments as Twycross v. Grant, 4 C.P.Div. 40, Phillips v. Homfray, 24 Ch.Div. 439, and Finlay v. Chirney, 20 Q.B.Div. 494, 37 Alb.Law J. 392, to see how unsettled the law is, and how obscure the distinctions upon which depend the survivability of causes of action remain even to this day in those courts, where the common law and the statutes of England are best understood. And, then, one has only to turn to the statutes, which are numerous, of any one or more of the American states, and read the series of judicial decisions upon the subject, to see how little success has attended its legislative regulation; the legislatures seemingly being helpless almost in their attempts to get...