Brown v. Fletcher

• Decision Date: 23 July 1904
• Docket Number: 3,715.
• Citation: 140 F. 639
• Parties: BROWN v. FLETCHER et al.
• Court: U.S. District Court — Eastern District of Michigan

140 F. 639

BROWN v. FLETCHER et al.

No. 3,715.

United States Circuit Court, E.D. Michigan, Southern Division.

July 23, 1904

The defendants move the dismissal of the bill of complaint in this cause for the following reasons: First. (a) Because the suit has been abandoned; (b) because of want of prosecution. Second. Because the cause of action stated in the bill of complaint has been transferred and assigned to Albert W Brown, who is now sole owner of the claim. The facts upon which this motion is predicated are succinctly stated in the brief of counsel for defendants, and, as their truth was not questioned upon the argument of the motion, they are adopted as the basis of the conclusion here reached. In 1874, one Spalding, administrator of William White, filed his bill in the Supreme Judicial Court of Massachusetts against George N Fletcher for a partnership accounting; Fletcher being served with process in Suffolk county, state of Massachusetts. Before Fletcher's death, Spalding, the complainant, died and the complainant in this cause, Frances M. Brown, was appointed administratrix de bonis non of his estate, and the suit was continued in her name until after Fletcher's death. Proofs were taken in the case from time to time before a referee or arbitrator, to whom the case had been referred by rule entered in the cause, but no report had been made by the referee and no final hearing had been had up to the time Fletcher died, November 6, 1899. Fletcher, at the time of his death, was a citizen of Michigan. He died testate, appointing by his will his sons, Frank W. Fletcher and Allan M Fletcher, his executors. His heirs and legatees were his three children, Frank W. Fletcher, Allan M. Fletcher, and Grace Fletcher, now Mrs.

King. February 4, 1901, Frances M. Brown, administratrix de bonis non, filed her bill in this court, setting up the proceedings in the Massachusetts court, and praying that the Michigan executors and heirs of Fletcher be compelled to appear in the Massachusetts suit, and abide its result; and, in case this court should decide that it could not enforce such action, that an accounting de novo be had here of the partnership affairs of Fletcher and White. A restraining order was entered, preventing the executors from closing the estate, which order is still of force. After the filing of this bill, as the Michigan executors and heirs of Fletcher had declined to appear in the Massachusetts suit, the complainant in that suit caused Frank B. Cotton to be appointed administrator of Fletcher in the state of Massachusetts, and the suit was revived against him, and attempted to be revived against the Michigan executors and heirs. December 3, 1902, Frances M. Brown, the complainant in the suit at bar, died. December 6, 1902, Albert W. Brown was appointed administrator de bonis non of the estate of White in her stead, and on March 3, 1904, in ancillary proceedings in Michigan, was appointed administrator de bonis non of the estate of White in this state. Subsequently, Albert W. Brown, in his own right, acquired the entire ownership of the claim against the estate of Fletcher in litigation in said Massachusetts suit, and, without waiting the determination of this court whether the executors and heirs could be compelled to appear in the Massachusetts suit, was substituted as plaintiff in the Massachusetts suit, and upon April 14, 1903, a decree was entered in his favor individually against Frank B. Cotton, administrator by the appointment of the Massachusetts court, for the sum of $394,372.87, with interest from February 3, 1903, and costs. The decree also charges that the Michigan executors are bound to pay such amount, and that the heirs are bound to pay so much of such amount as shall remain unsatisfied after the application of the proceeds of the estate of Fletcher has been made. During all of this time, nothing was done in the suit here, and after the death of Frances M. Brown, December 3, 1902, no steps were taken to revive the suit, no application has yet been made for that purpose, nor is any purpose or desire expressed or intimated to that end. On the contrary, Albert W. Brown, who now owns the claim, has obtained an order in the probate court for the county of Wayne, opening the commission for the hearing of claims against the estate of Fletcher, which order was obtained against the protest of the defendants in this cause. On the 16th day of January, 1904, Albert W. Brown filed his petition in the probate court of Wayne county, praying that a commission on claims be appointed to hear and pass upon the allowance of petitioner's claim against the estate of George N. Fletcher. His executors appeared, and opposed the application, upon the ground that the matter was in litigation in this court, and the petition was dismissed for that reason. Subsequently, on April 4, 1904, Brown presented another petition to the probate court on the same day, the commission on claims be revived, and the probate court on the same day, without notice to the executors, entered an order reviving the commission. April 9, 1904, Brown filed his claim against the estate of Fletcher with the commissioners on claims; the claim filed consisting of the judgment rendered by the Massachusetts court. May 5, 1904, the executors applied to the probate court to set aside the order reviving the commission on claims, for the reason that the matter was pending in this court, but the application was denied. On June 3, 1904, the defendant in this cause filed a plea in abatement with the commissioners, setting up the fact that the claim presented by Brown before the commissioners was being litigated in this court, and asking that the proceedings before the commissioners abate. This plea was overruled. Since the filing of this motion to dismiss the bill, June 16, 1904, Brown not only has failed to make any application to revive this suit, but upon July 3, 1904, notified the attorneys for the defendants in writing that he intended to proceed with the hearing upon the merits of the claim before the commissioners on claims in the probate court for the county of Wayne against the estate of said Fletcher upon July 8, 1904.

Russel & Campbell and Ashley Pond (Henry M. Campbell, of counsel), for the motion.

John Miner, opposed.

SWAN District Judge (after stating the facts).

In opposition to this motion, it is contended by the counsel for the late complainant: (1) That the motion is irregular, and that the court could not make a regular order thereon. (2) That the motion should be denied, because it asks a peremptory order of dismissal, instead of an order nisi to revive within a limited or specified time, or that the bill be dismissed. (3) That the remedy provided in section 955 of the Revised Statutes (U.S. Comp. St. 1901, p. 697) is exclusive. (4) That the time has not expired within which it is the absolute right of a personal representative of the deceased complainant to revive this suit, and that nothing less than the lapse of the period fixed by the statute of limitations can be pleaded to a bill of revivor.

With reference to the contention that the only grounds upon which a bill can be dismissed for want of prosecution are those named in general equity rules 38, 52, and 66, and rule 2 of the equity rules of the Circuit Court, it is sufficient to say that neither of these have any application to the questions presented by this motion, nor is the position sustained by the authorities. By rule 90 of the general equity rules it is provided that:

'In all cases where the rules prescribed by this court or by the Circuit Court do not apply, the practice of the Circuit Court shall be regulated by the present practice of the High Court of Chancery in England, so far as the same may reasonably be applied consistently with the local circumstances and local convenience of the district where the court is held, not as positive rules, but as furnishing just analogies to regulate the practice.'

In Thomson v. Wooster, 114 U.S. 112, 5 Sup.Ct. 788, 29 L.Ed. 105, Mr. Justice Bradley gives the history of the adoption of these rules, and emphasizes the limitations created by the words 'the present practice of the High Court of Chancery'; thus deciding that the practice in matters not regulated by the equity rules is that which obtained in the High Court of Chancery of England in 1842. It is conceded that general equity rules 56 and 57 make no provision to compel the revival of a suit abated by the death of a sole complainant. They prescribe simply the method and procedure by which a personal representative, at his own instance, may be substituted for a deceased complainant. It is claimed, however, that the omission in the general equity rules to provide for a compulsory revival by the complainant upon the application of a defendant was not an oversight, and that Congress had already legislated on the subject, making full provision by Rev. St. U.S. Sec. 955 (U.S. Comp. St. 1901, p. 697), for such a case 'in any suit in any court in the United States.' Clarke v. Mathewson, 12 Pet. 164, 9 L.Ed. 1041, is cited as an instance of the application of the section, but this question was not raised in that case. This argument assumes that section 955 includes not only cases at law but cases in equity; but this assumption is negatived by the case of In re Connaway, Receiver, v. Moscow Nat. Bank, 178 U.S. 421-433, 20 Sup.Ct. 951, 44 L.Ed. 1134, where the court quotes with approval from the case of Lewis v. Outlaw, 1 Tenn. (1 Overt.) 140, as follows:

''Agreeably to the practice of the courts of law in England, all suits abated by the death of either party; nor could they be revived by scire facias.' The court then proceeds to say that the practice in chancery in England was, upon the

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