In the Matter of W. P. Connaway, Receiver of the Moscow National Bank of Moscow, Idaho, Petitioner . riginal

• Decision Date: 28 May 1900
• Docket Number: O,No. 9,9
• Citation: 44 L.Ed. 1134,178 U.S. 421,20 S.Ct. 951
• Parties: Ex parte : In the Matter of W. P. CONNAWAY, Receiver of the Moscow National Bank of Moscow, Idaho, Petitioner . riginal
• Court: U.S. Supreme Court

178 U.S. 421

20 S.Ct. 951

44 L.Ed. 1134

Ex parte: In the Matter of W. P. CONNAWAY, Receiver of the Moscow National Bank of Moscow, Idaho, Petitioner.

No. 9, Original.

Submitted April 9, 1900.

Decided May 28, 1900.

Messrs. W. L. Hillyer, Curtis Hillyer, and Olin L. Berry for petitioner.

Messrs. W. H. Anderson and Jesse W. Lilienthal for respondent.

Mr. Justice McKenna delivered the opinion of the court:

This is a petition for a writ of mandamus to the judges of the circuit court of the United States for the ninth circuit and district of California, which substantially shows as follows:

The Moscow National Bank of Moscow, Idaho, was a corporation organized under the national banking laws of the United States, with its place of business at Moscow, Idaho.

The bank, becoming insolvent, was closed by order of the Comptroller of the Currency of the United States, and taken control of by that officer.

On January 3, 1898, he appointed petitioner receiver of the bank's assets.

On June 14, 1897, the Comptroller made an assessment of $100 on each share of the capital stock of the bank, and ordered the stockholders to pay the same on or before July 14, 1897. O. P. Overton and C. A. Hoffer were owners of one hundred shares, and by the assessment became indebted to petitioner in the sum of $10,000, with interest from June 14, 1897.

On March 28, 1898, petitioner commenced an action in that court against said Overton and Hoffer for the said sum of $10,000, and caused a summons to be issued, directed to them as defendants, and placed it in the hands of the marshal for service.

Service was made in the usual form by the marshal on Hoffer personally, in Santa Rosa, in said district.

As to Overton, the marshal made the following return on the 5th of April, 1898: 'I hereby certify that I was unable to make personal service on O. P. Overton, as he was very sick, and was not permitted to see anyone, under instructions of his physicians.'

On April 13, 1898, O. P. Overton died without service having been made upon him.

He made a last will and testament, appointing John P. Overton executor thereof, which was duly probated, and letters testamentary were duly issued.

On March 15, 1899, these facts were brought to the notice of the circuit court, and petitioner moved for and obtained an order directing that a writ of scire facias issue to said John P. Overton, which concluded as follows: 'You are hereby commanded within twenty days after the service upon you of this writ to appear and become a party to this suit, according to the provisions of § 955 of the Revised Statutes of the United States, or show cause why you should not, otherwise judgment may be taken against the estate of said deceased in like manner as if you had voluntarily made yourself a party.'

The writ was duly served and a motion was noticed for April 17, 1899, for an order setting aside the scire facias 'and the attempted service thereof.'

The ground of the motion was that 'Overton died before the service upon him of any process, that no process was ever served upon him herein, and that this action was never pending against him; and upon such other grounds as to the court may seem proper.'

The motion was granted, and the petitioner allowed an exception.

On June 12, 1899, upon the suggestion of the death of defendant O. P. Overton, the court made an order substituting John P. Overton as executor of the last will and testament of O. P. Overton, deceased, as defendant, and ordered an alias summons to issue to him as executor.

The summons was duly served, and on August 11, 1899, he, by his attorneys, filed and served a noic e of motion to set aside the order of substitution and quash the alias summons, on the ground 'that said O. P. Overton died before the service upon him of any process herein; that said alleged alias summons is not in the form required by law, and upon such other grounds as to the court may seem proper.'

The matter coming on to be heard on November 20, 1899, and having been submitted, it was granted on December 4, 1899, and petitioner was allowed an exception.

The petition for a writ of mandamus alleges that the ground upon which said court set aside the service of summons was that the action had abated by the death of O. P. Overton before the service of process upon him; and prays that a writ of mandamus be issued to the judges of the circuit court of the United States aforesaid to take jurisdiction and proceed against John P. Overton as executor as aforesaid.

A rule to show cause was granted. The return thereto by the learned judge of the circuit court admits that the allegations of the petition as to the proceedings had in the circuit court are true, except that the court 'has not refused to take jurisdiction of the action therein referred to, but only of the person of John P. Overton, executor of the last will and testament of O. P. Overton, the deceased defendant in said action.' And the return alleged that the grounds upon which the court set aside the service of the alias summons were stated in the opinion of the court. 98 Fed. Rep. 574.

The basis of the opinion is that the court had acquired no jurisdiction over the deceased defendant O. P. Overton, and could acquire none over his executor, John P. Overton.,

1. It is objected that mandamus is not the proper remedy. Counsel say: 'This is not a case in which the court refuses to entertain jurisdiction. The action has not been dismissed. It is still pending in the circuit court, and may, and doubtless will, proceed to final judgment.' But final judgment against whom? Not against O. P. Overton, for he is deceased. Not against John P. Overton or the estate he represents, because he has not been made a party to the action, and judgment against Hoffer alone may not be all of petitioners' remedy. If the court's ruling is errorneous, how can it be redressed by an appeal from the judgment, Overton not being a party to the action? The court declined to make him a party on the ground that it had no jurisdiction to do so. If it has jurisdiction, mandamus is the proper remedy. Re Grossmayer, 177 U. S. 48, 20 Sup. Ct. Rep. 535, 44 L. ed.——. Whether the court had jurisdiction we will proceed to consider.

2. The return of the rule to show cause is confined to the action of the circuit court on the alias summons. But its action for setting aside the writ of scire facias is also here for review.

Section 955 of the Revised Statutes of the United States provides as follows:

'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 pending, 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 party. The executor or administrator 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.'

It is preliminarily urged against this section that it 'applies only where an actio i § 'brought in a Federal court, and is based upon same act of Congress, or arises under some rule of general law recognized in the courts of the Union;' that in such an action 'the question of revival will depend upon the statutes of the United States relating to the subject;' but that otherwise it depends upon the laws of the state in which it is commenced.' Martin v. Baltimore & O. R. Co. 151 U. S. 673, 38 L. ed. 311, 14 Sup. Ct. Rep. 533; Baltimore & O. R. Co. v. Joy, 173 U. S. 226, 43 L. ed. 677, 19 Sup. Ct. Rep. 387, are cited.

In those cases the controversy was over the survival of the action; in the pending case that is not the controversy. It is not contended that the action does not survive. It is only contended that personal jurisdiction was not obtained of O. P. Overton before his death, and that, therefore, his executor, John P. Overton, could not be brought into the action, either by scire facias, under § 955, Rev. Stat., or by motion suggesting the death of his testate and by alias summons.

In Schreiber v. Sharpless [110 U. S. 76, 28 L. ed. 65, 3 Sup. Ct. Rep. 423], cited in Martin v. Baltimore & O. R. Co. 151 U. S. 673, 38 L. ed. 311, 14 Sup. Ct. Rep. 533, it was decided that 'whether an action survives depends on the substance of the cause of action, not on the forms of proceeding to enforce it.' And that a cause of action on a penal statute of the United States did not survive, even though causes of action on state penal statutes could be prosecuted after the death of the offender.

In Martin v. Baltimore & O. R. Co., however, the action was for personal injuries, and it was said: 'Whether the administrator has a right of action depends upon the law of West Virginia, where the action was brought and the administrator was appointed. Rev. Stat. § 721; Henshaw v. Miller, 17 How. 212, 15 L. ed. 222. The mode of bringing in the representative, if the cause of action survived, would also be governed by the law of the state, except so far as Congress has regulated the subject.' It was determined upon consideration that the cause of action did not survive.

In Baltimore & O. R. Co. v. Joy, the question was presented in an unique aspect. The action was for personal injuries, which occurred in Indiana, and suit was brought in Ohio. By the laws of the former state the action did not survive; by the...