Eaton v. Walker

• Decision Date: 26 February 1923
• Citation: 244 Mass. 23
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: FRED H. EATON & another v. ARTHUR T. WALKER.

244 Mass. 23

FRED H. EATON & another v. ARTHUR T. WALKER.

Supreme Judicial Court of Massachusetts, Essex.

February 26, 1923

November 13, 1922.

Present: RUGG, C.

J., DE COURCY CROSBY, CARROLL, & JENNEY, JJ.

Jurisdiction. Practice, Civil, Amendment, Parties, Removal to federal court.

Superior Court. Executor and Administrator. Upon a petition, by the defendant in an action brought in the Superior

Court, to remove the action to the District Court of the United States under Sections 28, 29 of the Judicial Code, the question, whether a cause for removal is made out on the face of the record as a matter of law, must be considered and adjudicated by the courts of the

Commonwealth subject to review by the Supreme Court of the United States.

In an action which was brought in the Superior Court by a writ directing attachment of goods or estate described as formerly of a named testator and then "in the possession" of the executor of his will, and summoning the executor to answer to the action, and in which the declaration set forth a claim for professional services as an attorney at law rendered to the executor with relation to the administration of the estate, the court has jurisdiction and power under G.L.c 231, Section 51, to allow an amendment of the writ striking out all reference to the estate of the testator and to the fact that the defendant was an executor and leaving it solely against the person who was the executor as the defendant in his individual capacity.

A party to a cause of action in his capacity as executor or administrator is a different person in law from the same individual when party to a cause of action in his individual capacity.

The person made defendant in his individual capacity by the amendment above described did not become defendant by succession to or by substitution for him self in his capacity as executor, and the bringing of him in as an individual party by substitution for himself in the capacity of executor, while necessary to the maintenance of the cause of action set out in the declaration, was not ancillary nor incidental to the prosecution of the original cause of action; but it was in essence an independent proceeding although permitted by our practice in the form of an amendment.

Words, expressions and reasoning used in judicial opinions with reference to the single question actually before the court cannot be wrested from their context and applied authoritatively to the determination of other questions.

If an executor of a will, who, as the defendant in an action at law begun in the Superior Court, has ground for removing the action to the

District Court of the United States under Sections 23, 24 of the Judicial Code fails to avail himself of that right within the time prescribed in those provisions, this does not prevent him later as an individual from maintaining successfully a petition for such removal immediately after the allowance of an amendment of the writ which eliminates him as a party in his capacity as an executor and substitutes him as a party in his individual capacity and after he has filed pleadings showing that the proceeding was in invitum as to him individually.

CONTRACT for the value of professional services as attorneys at law alleged to have been rendered to the defendant by the plaintiffs copartners under the name and style, Eaton and Chandler. Writ dated July 22, 1921.

The original writ and declaration and the plaintiffs' motion to amend the writ are described in the opinion. The motion was heard by Irwin, J., and was allowed. Notice thereof was given by the clerk of courts to the statutory agent of the executor of the will of Edward F. Searles and to his attorneys of record in the Superior Court. Thereupon, on February 6 and 7, 1922, special appearances were filed on behalf of the defendant, Arthur T. Walker, as an individual, "for the following purposes and none other, -- (1) of objecting to the jurisdiction for want of service upon Arthur T. Walker, and (2) without waiving such objection to jurisdiction, for the purpose of objecting to the plaintiffs' amended writ and declaration for non-joinder of Lewis L. Delafield as defendant jointly with said Arthur T. Walker, and (3) without waiving such objections to the jurisdiction and to the non-joinder of said Delafield, for the purpose of removing said cause to the District Court of the United States." On February 8-11, 1922, there were filed by such attorneys the petition for removal to the District Court of the United States for the District of Massachusetts and bond, described in the opinion, a motion to dismiss the action "for the reason that no service of process herein has been made upon the said Arthur T. Walker as defendant in said amended writ," which motion was filed "without waiving" the petition and bond for removal; and a plea in abatement, which specifically stated that it was filed without a waiver of the petition and bond for removal and the motion to dismiss and which was based on a failure to join as defendant one Lewis L. Delafield of the city, county and State of New York.

The petition for removal was heard by Irwin, J., and he, being of opinion that the allowance or denial of the petition ought to be determined by this court before any further proceedings in the Superior Court, reported the case to this court for its determination as to whether or not the petition for removal should be allowed or denied.

Section 28, as amended, and Section 29 of the Judicial Code, 36 U.S. Sts. at Large, 1094, 1095; 38 U.S. Sts. at Large, 278, are as follows:

"Section 28. Any suit of a civil nature, at law or in equity, arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority of which the district courts of the United States are given original jurisdiction by this title, which may now be pending or which may hereafter be brought, in any State court, may be removed by the defendant or defendants therein to the district court of the United States for the proper district. Any other suit of a civil nature, at law or in equity, of which the district courts of the United States are given jurisdiction by this title, and which are now pending or which may hereafter be brought, in any State court, may be removed into the district court of the United States for the proper district by the defendant or defendants therein, being non-residents of that State. And when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different States, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the district court of the United States for the proper district. And where a suit is now pending, or may hereafter be brought, in any State court, in which there is a controversy between a citizen of the State in which the suit is brought and a citizen of another State, any defendant being such citizen of another State, may remove such suit into the district court of the United States for the proper district, at any time before the trial thereof, when it shall be made to appear to said district court that from prejudice or local influence he will not be able to obtain justice in such State court, or in any other State court to which the said defendant may, under the laws of the State, have the right, on account of such prejudice or local influence, to remove said cause: Provided, That if it further appear that said suit can be fully and justly determined as to the other defendants in the State court, without being affected by such prejudice or local influence, and that no party to the suit will be prejudiced by a separation of the parties, said district court may direct the suit to be remanded, so far as relates to such other defendants, to the State court, to be proceeded with therein. At any time before the trial of any suit which is now pending in any district court, or may hereafter be entered therein, and which has been removed to said court from a State court on the affidavit of any party plaintiff that he had reason to believe and did believe that, from prejudice or local influence, he was unable to obtain justice in said State court, the district court shall, on application of the other party, examine into the truth of said affidavit and the grounds thereof, and, unless it shall appear to the satisfaction of said court that said party will not be able to obtain justice in said State court, it shall cause the same to be remanded thereto. Whenever any cause shall be removed from any State court into any district court of the United States, and the district court shall decide that the cause was improperly removed, and order the same to be remanded to the State court from whence it came, such remand shall be immediately carried into execution, and no appeal or writ of error from the decision of the district court so remanding such cause shall be allowed: Provided, That no case arising under an Act entitled `An Act relating to the liability of common carriers by railroad to their employees in certain cases,' approved April twenty-second, nineteen hundred and eight, or any amendment thereto, and brought in any State court of competent jurisdiction shall be removed to any court of the United States. And provided further, That no suit brought in any State court of competent jurisdiction against a railroad company, or other corporation, or person, engaged in and carrying on the business of a common carrier, to recover damages for delay, loss of, or injury to property received for transportation by such common carrier under section twenty of the Act to regulate commerce, approved February fourth,...