McNeil v. McNeil

• Decision Date: 31 May 1909
• Docket Number: 1,433.
• Citation: 170 F. 289
• Parties: McNEIL v. McNEIL et al.
• Court: U.S. Court of Appeals — Ninth Circuit

170 F. 289

McNEIL v. McNEIL et al.

No. 1,433.

United States Court of Appeals, Ninth Circuit.

May 31, 1909

Sullivan & Sullivan and Theo. J. Roche, for appellant.

D. M Delmas, Benj. K. Knight, Henry C. McPike, and Joseph H Skirm, for appellees.

Before GILBERT and ROSS, Circuit Judges, and VAN FLEET, District judge.

VAN FLEET, District Judge.

This is a bill in equity to declare void a certain decree of divorce obtained in a California state court and to enjoin its enforcement on account of actual fraud in its procurement. A demurrer to the bill was sustained, and the bill dismissed. The complainant appeals.

The appellees present a motion to dismiss the appeal, which raises the question of the jurisdiction of the court to entertain it, and this motion will therefore be considered first. The motion grows out of the following facts: The demurrer (which was to an amended bill) was sustained January 11, 1897, with leave to the complainant to amend. Complainant elected to stand upon her bill, without amendment. The defendant died April 1, 1906. On July 5, 1906, after his death, on the motion of Louise R. McNeil, claiming to be his surviving wife, the court entered a decree of dismissal nunc pro tunc as of January 22, 1897, the day after the expiration of the time allowed to complainant to amend. On December 15 1906, complainant presented her petition for appeal, which was allowed on the same day. On December 17, 1906, the court upon suggestion by affidavit of the death of the defendant and the issuance of letters of administration upon his estate, ordered that the citation be addressed to and served upon the administrator and upon the said Louise R. McNeil and the same was issued and served accordingly. The administrator and the said Louise R. McNeil now join in a motion to dismiss the appeal on the ground that the suit became defective on the death of the defendant, that it was never revived in the Circuit Court, either by bill or upon motion, and that neither the administrator nor the alleged surviving wife had ever been substituted as a defendant.

We think the motion should not be granted. Under Rev. St. Sec. 955 (U.S. Comp. St. 1901, p. 697), the executor or administrator of a deceased party may, in case the cause of action survives, by law prosecute or defend the suit to final judgment. It is further provided that if the executor or administrator, after being served with a scire facias to appear, neglects or refuses for 20 days to become party to the suit, the court may render judgment as if he had become a party. The proceedings in question were, therefore, unquestionably irregular. The administrator never became a party and was never served with scire facias to do so. The court, therefore, should not have rendered the judgment; but it does not now lie in the mouth of Louise R. McNeil to object to a judgment made upon her request, and she cannot be heard to say that she was not a party, and, however irregular it may have been to treat her as a quasi party, such irregularity could be corrected only upon appeal. Moreover, it is settled that a person who proceeds in a suit, and takes an order or decree therein without revivor, is estopped to object for want of revivor.

The administrator appeared generally in this court on this appeal, and, without making any objection, argued and submitted the case on the merits. He has therefore ratified and adopted the decree, as if he had been a party to it, and is therefore in no better position than Mrs. McNeil, with whom he joined in the motion. He should, however, be formally substituted as respondent in this court, and, as appellant has moved for such a substitution, it may be done accordingly.

As to the...