Mackaye v. Mallory
| Decision Date | 23 February 1897 |
| Citation | 79 F. 1 |
| Parties | MACKAY v. MALLORY (two cases.) |
| Court | U.S. Court of Appeals — Second Circuit |
Carter & Ledyard, for appellant.
E. W Tyler, for appellee.
Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.
These are appeals by the defendant from an order in each cause admitting the administratrix of the estate of Steele Mackay deceased, to prosecute the cause. In one cause Steele Mackay was the complainant, and in the other he was the complainant in a cross bill. Upon his death his administratrix filed a bill of revivor in each case, and the defendant interposed an answer. In the answers the defendant alleged facts which he insisted established that during a period of about 12 years the original complainant, through negligence and laches, had wholly failed to prosecute the actions, and that the actions had been practically abandoned by the parties at the time of his death. The court below was of the opinion that the revival of the suits by the administratrix was a matter of right under section 955, Rev. St. U.S.; that the defenses alleged in the answers were unavailing; that the filing of bills of revivor was unnecessary; and that, instead of decrees upon the bills of revivor adjudging the actions to stand revived, orders should be entered to that effect in the original causes. The appellant assigns as error that the court below should have sustained the defenses set up in the answers, and should have dismissed the bills of revivor. We are of opinion that these orders cannot be reviewed except by an appeal from the final decree in the causes. Inasmuch as a bill of revivor is not an original suit, but is merely a continuance of an original suit (Clark v. Matthewson, 12 Pet. 164), it is not clear that an order or decree thereon would be a final decision, within the meaning of section 6 of the act of congress of March 3, 1891, conferring jurisdiction upon this court to hear appeals. A decision is final, in the sense in which an appeal from it is permitted, when it decides and disposes of the whole merits of the cause as between the parties to the appeal, reserving no further questions or directions for the future judgment of the court; so that to bring the cause again before the court for decision will not be necessary. When a bill of revivor is dismissed, as this would practically determine the original cause by leaving it in a situation in which no further...
To continue reading
Request your trial
-
Sullivan v. Associated Billposters and Distributors
...to the appeal, making it unnecessary as between them to bring the case a second time before the court for its decision. Mackaye v. Mallory, 79 F. 1, 24 C. C. A. 420; Butler v. Fayerweather, 91 F. 458, 33 C. C. A. 625; Odell v. H. Batterman Co., 223 F. 292, 295, 138 C. C. A. 534; Empire Trus......
-
Cant v. Bartlett
...turns to cases from foreign jurisdictions, the nonappealability of the revivor order in this case becomes more apparent. In Mackaye v. Mallory, 79 F. 1 (2d Cir. 1897), the court addressed the appealability of an order reviving a suit upon the plaintiff's death. It viewed the order as merely......
- State v. Brunette
-
Platte Valley Nat. Bank & Trust v. Lasen
...is like any other erroneous ruling of the court, to be reviewed on appeal from the final decree in the cause. See, also, Mackaye v. Mallory, 79 F. 1, 2 (2d Cir.1897) (stating that revivor order "does not finally dispose of the cause, and can be reviewed . . . by an appeal from the final dec......