Schreiber v. Sharpless

• Decision Date: 17 April 1883
• Citation: 17 F. 589
• Parties: SCHREIBER and others, who sue as well for the United States as for themselves, v. SHARPLESS. [1]
• Court: U.S. District Court — Eastern District of Pennsylvania

17 F. 589

SCHREIBER and others, who sue as well for the United States as for themselves,

v.

SHARPLESS. ^[1]

United States District Court, E.D. Pennsylvania.

April 17, 1883

H. P Brown, Asst. Dist. Atty., and John K. Valentine, Dist. Atty for the United States.

A Sydney Biddle, for plaintiffs.

E Hunn, Jr., for defendants.

BUTLER J.

The defendant having died, the plaintiff issued a scire facias to bring in his legal representatives. A motion to quash this writ raises the question before us. By agreement of parties, the question was heard before the circuit as well as the district judge.

That the cause of action terminated with the defendant's death, unless saved by statutory provision, is clear. That no such provision, in direct terms, is made by federal statute, is equally clear. An act of the state legislature preserves personal actions generally against abatement by death of parties, and the provisions of this statute are invoked by the plaintiff in support of his writ. That they are inapplicable, unless the federal legislature has provided otherwise, is also clear. It is urged, however, that such provision has been made; and in support of this position our attention was directed at the outset to the act of 1872 (section 914 of the Revised Statutes) relating to modes of proceeding and practice in civil causes, and to the provisions of the judiciary act of 1789, (Rev. St. Secs. 721, 955.) It is now conceded, however, that the act of 1872 falls short of the case, and reliance is placed exclusively on the sections referred to of the act of 1789. The first of these sections reads as follows:

'Sec. 721. The laws of the several states, except where the constitution or treaties of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States, in cases where they apply.'

That this section does not sustain the plaintiff seems quite plain. The laws of the state are made 'rules of decision' in the federal courts, in cases where they apply. That is to say, in cases where the federal courts obtain jurisdiction by reason of the citizenship of parties the statutes and customs of the state, which lawfully affect their rights, shall be regarded as rules of decision in passing upon such rights. The section can have no application to cases in which the jurisdiction of the court arises out of the cause of action, and consequently involves rights over which the state legislature can exercise no authority, except, of course, in so far as the section may relate to the method of proceeding and practice, and, in this respect, it is virtually superseded by the clause before referred to, of the act of 1872. Nor does the remaining section, 955, afford the plaintiff any better...