Plimpton v. Mattakeunk Cabin Colony

• Decision Date: 17 February 1934
• Docket Number: No. 1947.,1947.
• Citation: 6 F. Supp. 72
• Court: U.S. District Court — District of Connecticut
• Parties: PLIMPTON v. MATTAKEUNK CABIN COLONY, Inc. SPELLACY et al. v. FARLEY. SAME v. FARLEY et al.

6 F. Supp. 72

PLIMPTON v. MATTAKEUNK CABIN COLONY, Inc.

SPELLACY et al. v. FARLEY.

SAME v. FARLEY et al.

No. 1947.

District Court, D. Connecticut.

February 17, 1934.

Lampke & Stein, of New York City (Samuel D. Stein, of New York City, of counsel), for receivers.

Allin, Tucker & Allen, of New York City (Lewis M. Isaacs and George L. Allin, both of New York City, of counsel), for executors.

THOMAS, District Judge.

This matter is now before the court on the motion of the executors to quash the writ of scire facias issued pursuant to Revised Statutes, § 955, as amended (28 USCA § 778).

Receivers in equity were appointed by this court in February, 1928, upon the filing of a creditor's bill and consent of the defendant Cabin Colony. The receivership was made permanent. The Colony's principal asset was real estate situated in Connecticut. On April 9, 1930, Robert E. Farley, the executors' testator, the original respondent in the proceeding to which the present motion is addressed, signed a contract to buy said real estate from the receivers subject to this court's approval. The price was about $160,000, to be fixed exactly by survey and computation of acreage. Under the terms of the contract the buyer paid $10,000 on account, and agreed to pay the balance on closing of title. After hearings on notice, this court, by order dated April 29, 1930, approved and confirmed said contract. An appeal from the order of sale by a group of objecting lessees was on motion dismissed as frivolous by the Circuit Court of Appeals.

Thereafter, to avoid a possible question of title, a public auction sale, pursuant to statute, 28 USCA §§ 847, 849, was held by order of this court, and the said Farley bid in the property on the same terms specified in his contract and the April 29, 1930 order which had confirmed it. After hearing on notice, this court, by order of February 13, 1931, confirmed the public sale to Farley.

On November 25, 1931, Farley notified the receivers that he would not accept title to the property and complete his bargain on the ground that title was unmarketable. After protracted but futile negotiation between Farley and the receivers, the latter, on voluminous petitions and affidavits, obtained from this court on June 27, 1933, a rule nisi directing Farley to show cause why he should not specifically perform his contract, and pay damages accrued to the estate in receivership by reason of his alleged anticipatory breach; or, in the alternative, why the property should not be ordered resold at his risk, he to respond to any loss resulting from resale and to pay accrued damage. The rule further directed him to show cause why, if he proved recusant, he should not be punished for contempt and why pendente lite he should not be enjoined from transferring any of his assets.

On August 29, 1933, Farley appeared generally with respect to all portions of the said rule which required him to show cause why he should not specifically perform his contract and/or pay money damages, but (on the ground that he had been served without the district of Connecticut, he having been for some time confined by illness to his home in New York) he appeared specially with respect to that portion of the rule which required him to show cause why he should not respond to the additional incidental relief prayed for and be amenable to contempt proceedings, if recusant. In opposition to the rule he served voluminous answering affidavits in support of his contention that title was unmarketable and he prayed that the rule be discharged and his $10,000 deposit be returned with interest. Thereafter, the receivers served reply affidavits, but on September 28, 1933, shortly before the matter was to have been argued, Farley died. Letters testamentary issued out of the Surrogate's Court, Westchester county, N. Y., to his executors, on whom was duly served the writ of scire facias; and they thereupon appeared specially and made this motion to quash the writ.

Before considering the various grounds which counsel in their argument and exhaustive briefs have advanced in support of and attack on the writ, I shall quote the statute (28 USCA § 778) under which it issued:

"Death of parties; substitution of executor or administrator. When either of the parties, whether plaintiff or petitioner or defendant, in any suit in any court of the United States, dies before final judgment, the executor or administrator of such deceased party may, in case the cause of action survives by law, prosecute or defend any such suit to final judgment. The defendant shall answer accordingly, and the court shall hear and determine the cause and render judgment for or against the executor or administrator, as the case may require. And if such executor or administrator, having been duly served with a scire facias from the office of the clerk of the court where the suit is depending twenty days beforehand, neglects or refuses to become party to the suit, the court may render judgment against the estate of the deceased party in the same manner as if the executor or administrator had voluntarily made himself a party. The executor or adminstrator who becomes a party as aforesaid shall, upon motion to the court, be entitled to a continuance of the suit until the next term of said court.

"The provisions of this section shall apply to suits in equity and in admiralty as well as to suits at law, and the jurisdiction of all courts of the United States shall extend to and over executors and administrators of any party, who dies before final judgment or decree, appointed under the laws of any State or Territory of the United States, and such courts shall have jurisdiction within two years from the date of the death of the party to the suit to issue its scire facias to executors and administrators appointed in any State or Territory of the United States which may be served in any judicial district by the marshal thereof. No executor or administrator shall be made a party unless such service is made before final settlement and distribution of the estate of said deceased party to the suit.

"This section shall apply to suits in which any party has deceased prior to November 23, 1921, as well as to suits in which any party may have died thereafter or may die hereafter. (R. S. § 955; Nov. 23, 1921, c. 142, §§ 1, 2, 42 Stat. 323, 324; Dec. 22, 1921, c. 18, 42 Stat. 352.)"

It will at once be observed that the statute is limited to a pending suit and one of a nature that survives. The first paragraph of the section has been the law since the first Congress, whose object was to provide against the abatement of actions which would otherwise abate at common law. In re Connaway, as Receiver of the Moscow National Bank, 178 U. S. 421, 20 S. Ct. 951, 44 L. Ed. 1134. In equity, the cause would not abate if it was of a nature that survived, but was merely suspended until the representative of the deceased party was substituted. F. A. Mfg. Co., Inc., v. Hayden & Clemons, Inc. (C. C. A.) 273 F. 374; Sullivan v. Asso. Billposters (C. C. A.) 6 F.(2d) 1000, 42 A. L. R. 503. The second paragraph, enacted in 1921 (42 Stat. 323), applied the section to suits in equity and in admiralty as well as to suits at law. Prior thereto, the early procedure in equity was by bill of revivor or one of that nature; later, substitution was effected by motion under the Equity Rules, the latest being rule 45 of the rules of 1912 (28 USCA § 723). Brown v. Fletcher et al. (C. C.) 140 F. 639; Ex parte Slater, Public Administrator, etc., 246 U. S. 128, 38 S. Ct. 265, 62 L. Ed. 621. But since the 1921 amendment, substitution and revivor are effected by writ of scire facias in all proper cases, whether at law, in equity, or in admiralty.

The statute says, "In case the cause of action survives by law," but it is silent as to what causes survive and what do not. Even prior to the 1921 amendment, the rule was stated by Chief Justice Waite in Schreiber et al. v. Sharpless, 110 U. S. 76, at page 80, 3 S. Ct. 423, 424, 28 L. Ed. 65, as follows:

"Whether an action survives depends on the substance of the cause of action, not on the forms of proceeding to enforce it."

And whether a particular action is of a kind that survives for or against the personal representative of a deceased person is a question not of procedure but of right. Martin's Administrator v. Baltimore & Ohio Railroad Co., 151 U. S. 673, 14 S. Ct. 533, 38 L. Ed. 311; Warren et al. v. Furstenheim (C. C.) 35 F. 691, 1 L. R. A. 40.

Since Congress has not determined what causes of action survive, the established rule, undisputed, is that except in actions brought under a federal statute, the law of the state where the action was commenced, in this instance Connecticut, governs. B. & O. Railroad v. Joy, 173 U. S. 226, 19 S. Ct. 387, 43 L. Ed. 677. It is also conceded that the relevant portion of the pertinent Connecticut law is the following, which I quote from section 6030, General Statutes of Connecticut, Revision of 1930:

"Survival of actions and causes of action. No cause or right of action shall be lost or destroyed by the death of any person, but it shall survive in favor of or against the executor or administrator of such deceased person. No civil action or proceeding shall abate by reason of the death of any party thereto, but it may be continued by or against the executor or administrator of such decedent. In case of the death of any party plaintiff, his executor or administrator may enter within six months thereafter and prosecute the suit in the same manner as his testator or intestate might have done if he had lived; and, in case of the death of any party defendant, the plaintiff may have a writ of scire facias against such decedent's executor or administrator to show cause why judgment should not be rendered against him, which shall be served at least twelve days before the day upon which it is returnable, and upon its return the action may proceed. The...