Zuckerman v. McCulley

• Decision Date: 14 December 1948
• Docket Number: No. 13804.,13804.
• Citation: 170 F.2d 1015
• Parties: ZUCKERMAN v. McCULLEY.
• Court: U.S. Court of Appeals — Eighth Circuit

170 F.2d 1015 (1948)

ZUCKERMAN v. McCULLEY.

No. 13804.

United States Court of Appeals Eighth Circuit.

December 14, 1948.

Samuel H. Liberman, of St. Louis, Mo. (Gideon H. Schiller, of St. Louis, Mo., on the brief), for appellant.

B. Sherman Landau, of St. Louis, Mo. and (Louis E. Miller, of St. Louis, Mo., on the brief), for appellee.

Before SANBORN, THOMAS and JOHNSEN, Circuit Judges.

SANBORN, Circuit Judge.

Samuel Zuckerman, of St. Louis, Missouri, died testate on October 25, 1946. His will named Una McCulley, his third wife, who divorced him in 1945, as executrix and residuary legatee. Letters testamentary were issued to her by the Probate Court of the City of St. Louis, Missouri, on October 31, 1946. Minnie Zuckerman, of Auburn, Maine, was the second wife of Samuel Zuckerman and the mother of his daughter, Betty Zuckerman, who was born August 6. 1929. By his will, Samuel Zuckerman left $1 to Minnie Zuckerman, and left to Betty Zuckerman $5 and approximately $4,000 of Government Bonds, "now standing in her name." Minnie Zuckerman, upon the claim that, at the time of his death, the testator was indebted to her in the sum of $12,860 for moneys which she had necessarily expended in the care, support, education and maintenance of Betty Zuckerman, brought this action in the District Court of the United States for the Eastern District of Missouri against Una McCulley, executrix, to establish the claim against the decedent's estate. The complaint was filed October 14, 1947. Summons was issued on that day and delivered on the following day to the United States Marshal for service.

Under the statutes of Missouri relating to the administration of estates of deceased persons, demands against such estates must be legally exhibited within one year from the granting of letters, or be "forever barred." Sec. 182, R.S.Mo.1939, Mo.R.S.A. Sec. 184 provides: "All actions commenced against such executor or administrator, after death of the deceased, shall be considered demands legally exhibited against such estate from the time of serving the original process on such executor or administrator." An alternative method for exhibiting a demand against an estate by serving notice of claim upon the executor or administrator is provided by Sec. 185, R.S.Mo.1939, Mo.R.S.A.

It is apparent that, under these Missouri statutes, the plaintiff (appellant) had one year from October 31, 1946, the day when letters testamentary were issued, to legally exhibit her demand against the estate of Samuel Zuckerman, and that, if she failed to do so, the claim would be "forever barred." An attempt to obtain substituted service of summons upon the defendant (appellee) was made on October 29, 1947. The defendant, who lived in St. Louis, Missouri, was in Illinois at that time and did not return to St. Louis until November 2, 1947. The Marshal's return of service reads as follows:

"I hereby certify and return, that on the 15th day of October 1947, I received the within summons, and executed same by serving the defendant, Una McCulley by leaving a true copy of Summons, together with copy of Complaint attached thereto, as furnished by the Clerk of the Court, with an elderly Negro who answered the door and said that he was the janitor of the house but who would not give his name, at St. Louis, Missouri, on October 29, 1947.

Otto Schoen United States Marshal. By Ray L. Kirgan Deputy United States Marshal."

The defendant, on November 18, 1947, filed a motion to quash the return of service, upon the ground that service had not been made by leaving a copy of the summons and of the complaint at her "dwelling house or usual place of abode with some person of suitable age and discretion then residing therein," in conformity with Rule 4(d) (1) of the Federal Rules of Civil Procedure, 28 U.S.C.A. At the hearing of the motion, testimony was introduced which showed that "the door" referred to in the Marshal's return was the front door of a rooming house at 5097 Washington Avenue, in the City of St. Louis; that the "elderly Negro who answered the door" was Henry Woods, who worked there during the day as a janitor, but who lived elsewhere; and that the files and records of the Probate Court indicated that 5097 Washington Avenue was the residence of the defendant. The District Court concluded that a janitor of a rooming house, who did not live in the house, was not "residing therein" within the meaning of Rule 4(d) (1); and on December 10, 1947, entered an order quashing the return of service. The plaintiff on December 20, 1947, filed a motion for a rehearing, pointing out that, under Rule 4(d) (7) of the Federal Rules of Civil Procedure, the service of summons was sufficient if it conformed to the Missouri practice, and that, under Sec. 27, Laws of Missouri 1943, page 366, Mo.R.S.A. § 847.27, process may be served upon a defendant "by leaving a copy of the summons and of the petition at his dwelling house or usual place of abode with some person of his family over the age of 15 years." The plaintiff asserted in her motion that Henry Woods was a person of the defendant's family within the meaning of the Missouri statute. After giving careful consideration to the plaintiff's contentions, the District Court concluded that Henry Woods, the daytime janitor of the rooming house was not a person of the defendant's family. 7 F.R.D. 739. Consequently, on January 23, 1948, the court entered an order denying the plaintiff's motion for a rehearing with respect to the order quashing the return of service.

On February 2, 1948, the plaintiff procured the issuance of an alias summons, which, with a copy of the complaint, was personally served upon the defendant the following day. On February 24, the defendant filed a motion to dismiss the action upon the ground that the plaintiff's claim was barred by the statutes of Missouri, that the court was without jurisdiction, and that the complaint stated no claim upon which relief could be granted. It appears from the opinion of the court, 78 F.Supp. 380, that the plaintiff resisted the motion to dismiss, upon two grounds: (1) that, under Rule 3 of the Federal Rules of Civil Procedure, a civil action is commenced by filing a complaint with the court, and that therefore the filing of the complaint in this action tolled the applicable statute of Missouri limiting the time for exhibiting demands against the estate of Samuel Zuckerman; and (2) that the defendant's conduct in leaving the state of Missouri during the latter part of October 1947, to escape personal service of summons, estopped her from invoking the bar of the statute. The District Court entered an order dismissing the complaint on June 4, 1948.

The plaintiff, on July 1, 1948, filed her notice of appeal "from the order and final judgment entered June 4, 1948 dismissing plaintiff's complaint and from the order entered December 10, 1947 sustaining defendant's motion to quash the return of service and quashing the said return of service." The plaintiff seeks a review of each of these orders. The appeal from the order of dismissal of June 4, 1948, was taken within the 30 days allowed for appeal by amended Rule 73(a) of the Federal Rules of Civil Procedure, effective March 19, 1948. The appeal from the order of December 10, 1947, quashing the return of service — which order became final on January 23, 1948, when the District Court denied a rehearing — was obviously out of time. Prior to March 19, 1948, the time for appeal from a final order or judgment in a civil case was three months. 28 U.S.C.A. § 230.¹ The plaintiff, therefore, had not to exceed three months from January 23, 1948, within which to appeal from the order quashing the return of service. That...