Benjamin Story, Appellant v. Louisa Livingston, Executrix of Edward Livingston, Appellee
Decision Date | 01 January 1839 |
Citation | 38 U.S. 359,13 Pet. 359,10 L.Ed. 200 |
Parties | BENJAMIN STORY, APPELLANT, v. LOUISA LIVINGSTON, EXECUTRIX OF EDWARD LIVINGSTON, APPELLEE |
Court | U.S. Supreme Court |
APPEAL from the District Court of the United States, for the eastern district of Louisiana.
On the second of March, 1837, the following decree of the Supreme Court of the United States, was produced in open Court, in the District Court of the United States, for the eastern district of Louisiana. The cause had been taken by Mrs. Livingston, executrix, by appeal to the Supreme Court, and the decree of the District Court reversed. 11 Peters, 351.
The mandate of the Supreme Court, conforming to this decree, was filed in the District Court by the counsel for Mrs. Livingston, and by an order of the District Court, the case was referred to a master in equity, Duncan N. Hennen, Esq., to examine into and report upon the account, according to the principles and rules established on the judgment of the Supreme Court.
Various proceedings took place in the District Court, after the order of reference to the master for an account.
The counsel for the defendant moved to strike from the docket, the complainant's suit; because,
1. Edward Livingston, the former complainant herein, departed this life on the ___ day of _____ and before the hearing of this cause in this Court at the spring term thereof, in 1836.
2. The said Livingston departed this life before the making or enrolment of the decree herein at the spring term of the year 1836; consequently the Court could not then entertain and jurisdiction of the cause.
3. This cause has never been regularly revived in the name of the present complainant—nor could it be so revived by the laws and usages of chancery, the complainant claiming as a devisee.
On the 18th of December, 1837, the District Court, after argument overruled this motion.
On the same day, the report of the master was filed. This report contained, at large, all the evidence produced before the master; with an account, by which a balance of thirty-two thousand nine hundred and fifty-eight dollars and eighteen cents, was found due by Benjamin Story, to Mrs. Livingston, executrix, on the first of November, 1837.
On the second of January, 1838, exceptions to the master's report were filed by Mr. Story.
1. Because chancery practice has been abolished by a rule of this Court, and such proceeding is unknown to the practice of the Court.
2. The master has erred in not allowing to the defendant the thousand dollars, with interest, paid to Morse, or some part thereof.
3d. The master's report does not show that it reports all the evidence taken before the master.
4. The master, in making his estimates and calculations, has not pursued the mandate of the Court.
5. It appears, from the master's report, that the stores were rented from November to November; and he erred in assuming the 1st April as the period of payment of annual rent.
6. A reasonable allowance should have been made to Story for the costs and risk of collecting the rents.
7. The master erred in all his charges against the defendant, and failed to allow the defendant his proper credits.
These exceptions were overruled by the District Court, and the Court decreed that Benjamin Story do pay to the complainant the sum of thirty-two thousand nine hundred and fifty-eight dollars and eighteen cents; and that the master's report be, in all other respects confirmed: and that the defendant conform to the decree of the Supreme Court in this case.
A petition for a rehearing was afterwards presented to the District Court, by the counsel for the defendant, which, after argument, was overruled; and the District Court made the following decree:
'The petition for a rehearing having been overruled, it is ordered, adjudged and decreed, that the defendant, Benjamin Story, do further surrender and reconvey the property described in the bill of complaint as 'all that parcel of ground situated on the batture of the suburb St. Mary, between Common and Gravier streets, measuring eighty-two feet fronting Common street; one hundred and twenty-six feet, or thereabouts, fronting Tchaptoulas street, one hundred and forty-six feet, or thereabouts, fronting New Levee street, and bounded on the other side by the lot of ground belonging to Messrs. Livermore, Morse, Miller and Pierce, containing one hundred and twenty feet, or thereabouts; together with the buildings, improvements, and all other appurtenances to the same in any wise belonging or appertaining,' to Louise Livingston, widow and executrix and devisee of Ed. Livingston, deceased, and to Cora Barton, daughter, and forced heir of said Ed. Livingston; in conformity to the decree of the Supreme Court of the United States, and to the decree heretofore made in pursuance thereof by this Court.'
The case having been transferred to the Circuit Court of the United States for the ninth Circuit, and eastern district of Louisiana; the defendant prosecuted this appeal.
The case was argued by Mr. Crittenden and Mr. Jones, for the appellant; and by Mr. Ogden, and Mr. Butler, with whom was Mr. Key, for the appellee.
The counsel for the appellant stated that the great object of the appellant was to bring before the Court of Louisiana, the fact of the decease of Mr. Livingston, before the decree of the Court was rendered. They had offered proof of this, and it was rejected. A supplementary bill was filed for the purpose of introducing this fact, and this was refused a hearing in the District Court, then having the cause before it. A mandamus was then asked of this Court, for the purpose of having the matter presented in the supplementary bill heard, which was refused. 12 Peters, 339.
It was contended that the death of Mr. Livingston, before the decree from which the appeal was originally taken, had made all the proceedings on that appeal irregular and void; and the case ought now to be open to a re-examination on all of its merits.
The right of the executrix, after the decease of the testator, was to revive the suit. This should have been done, but she could not prosecute an appeal, as she had done, (11 Peters, 351,) without having previously revived the suit.
The question is, whether the mandate of this Court, in the appeal decided in 1837, (11 Peters, 351,) could be executed without their being proper and legal parties to the case. It is admitted that the principles of the case have been settled in ...
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