Terry v. Sharon
| Decision Date | 13 May 1889 |
| Citation | 33 L.Ed. 94,131 U.S. 40,9 S.Ct. 705 |
| Parties | TERRY et ux. v. SHARON |
| Court | U.S. Supreme Court |
This an appeal from the circuit court of the United States for the Northern district of California, and is now before us upon a motion on the part of the appellee to dismiss the appeal or to affirm the decree below. The appeal, which was the subject of this dual motion, is from an order of the circuit court reviving a suit in equity after a final decree in the case had been made, and after the death of William Sharon, the plaintiff in that suit. Sharon died after the case had been submitted to the court, but before its decision, and the court, finding in his favor, ordered the decree to be entered nunc pro tunc, as of the date of submission. The object of the original suit was to have a decree, declaring the nullity and invalidity of a certain instrument in writing purporting to be a declaration of marriage between the complainant, William Sharon, and Sarah Althea Hill, the defendant. The decree which was rendered in that case declared that said instrument was false, fabricated, forged, fraudulent, and utterly null and void, and directed that it be canceled and set aside. It further decreed that, upon 20 days' notice of the decree to the respondent, or to her solicitors, the instrument be delivered by the respondent to, and deposited with, the clerk of court to be indorsed 'Cancelled;' and the defendant was perpetually enjoined from alleging its genuineness or validity, or making any use of the same in evidence or otherwise to support any right or claim under it. The decree itself was rendered on November 23, 1885, and was entered as of September 29th of that year, the date of submission. On March 12, 1888, Frederick W. Sharon, as executor of William Sharon, deceased, filed his bill of revivor in the cause, setting forth the act of the death of William Sharon, and that he left a will, which was duly probated, and on which letters testamentary had issued to him as executor; that the so-called declaration of marriage had not been delivered for cancellation, as ordered by the decree; and that the plaintiff feared the defendant would claim and seek to enforce property rights as the wife of William Sharon, by virtue of said written declaration of marriage. The bill of revivor further stated that on January 7, 1885, the defendant Sarah Althea Hill had intermarried with David S. Terry, and he was accordingly made a defendant with her to the bill of revivor. It prayed, therefore, that the suit might be revived in his name as executor, and that the defendants be required to show cause why the original suit and proceedings should not stand revived against them. To this bill of revivor, the defendants interposed a demurrer, which stated, among other things, that the court had no juris- diction of the subject-matter of the suit, and no jurisdiction to grant the relief prayed for in the bill, or any part thereof, and that the bill did not contain any matter of equity whereon the court could ground any decree or give to the plaintiff any relief against the defendants, or either of them. The circuit court entered an order overruling the demurrer, and reviving the suit in the name of Frederick W. Sharon, as executor of William Sharon, and against Sarah Althea Terry and David S. Terry, her husband, and ordering that the executor have the full benefit, rights, and protection of the decree, and full power to enforce the same against the defendants, and each of them, in all particulars. 36 Fed. Rep. 337. It is from this order that the present appeal is taken.
S. Shellabarger, and J. M. Wilson, for appellants.
H. E. Davis and S. M. Wilson, for appellee.
[Argument of Counsel from pages 42-45 intentionally omitted]
The motion to dismiss the appeal is based upon the proposition that the order reviving the suit is not such a final order or decree as can be brought to this court for review. The principal argument on that subject is that, like the proceedings subsequent to a judgment at law for its enforcement by execution or otherwise, it is merely ancillary to the original decree, and a mode of carrying it into effect. But we are not satisfied that this is a sound argument, and if the case before us rested alone upon the question of dismissing the appeal, or overruling the motion to do so, we should feel compelled to overrule the motion.* The idea cannot be sustained that when a judgment or decree is rendered against a defendant, and it remains wholly unexecuted, anybody, without any right, authority, or interest in the matter, can come in, and, by filing a bill of revivor, or by making a motion, have himself substituted for the plaintiff, who has deceased, with all the rights which that plaintiff would have had to enforce the judgment or decree. Two questions must always present themselves in such a case, or, at least, may be presented, the one is whether the decree is in condition that any further action can be had, or any right asserted under it by those who succeed the plaintiff as heirs, devisees, executors, or otherwise; and the other is whether the party who thus asserts the right to the benefit of the decree is entitled to such right, and is by law the person who can claim its enforcement, or should, in any action or matter arising out of the decree, represent the rights of the original plaintiff. Both of these questions are matters which interest the defendant in the original decree, and in regard to which he must have a right to a hearing before the circuit court; and the order of the circuit court on that subject is so far final, and may so far affect the rights of the defendant, that we think he is entitled to an appeal from such an order, if, in other respects, it is one within the jurisdiction of the supreme court. If the defendant has not this right of resistance, he might be harassed by suits to revive the judgment by any number of parties claiming in different or opposing rights, and he surely must have some power to protect himself f om this; and the order which the court makes in such a case is so essentially decisive and important that we do not doubt that it is appealable. The motion, therefore, to...
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