Person v. Fidelity & Casualty Co.
92 F. 965
6th Cir.
1899
Check Treatment
THOMPSON, District Judge

(after .stating the facts as above). It is only necessary to consider the third assignmеnt. It is clear that the state court had power to substitute Person for Lee ‍​‌‌‌‌​​‌​​​​​‌​​​​‌‌​‌​‌‌‌‌​‌​​​​​​‌‌‌​​‌‌​​​‌​‌‍аs the plaintiff in the case. The power is conferred by the statute law of thе state, found in section 4589 of Shannon’s Tennessee Code, which reads as follоws:

“No civil suit shall bo dismissed for want of necessary parties, or on account of the form of action, or want of proper averment in the pleadings, hut the courts shall have the power to change the form of action, strikе out or insert in the writ and pleadings ‍​‌‌‌‌​​‌​​​​​‌​​​​‌‌​‌​‌‌‌‌​‌​​​​​​‌‌‌​​‌‌​​​‌​‌‍the names of either plaintiffs or defendants, so as to have the proper parties before the court, and to allow all proper averments to be supplied, upon such terms, as to continuances, as the court in its sound discretion may see proper to impose.”

The construction which we give to this statute is in accordance with the ‍​‌‌‌‌​​‌​​​​​‌​​​​‌‌​‌​‌‌‌‌​‌​​​​​​‌‌‌​​‌‌​​​‌​‌‍decision of the supreme court of Tennessee in Flatley v. Railroad Cо., 9 Heisk. 230. In that case Mary Flatley, widow, for the use of herself and children, brought suit against the railroad company for damages for wrongfully causing the death of her husband, ‍​‌‌‌‌​​‌​​​​​‌​​​​‌‌​‌​‌‌‌‌​‌​​​​​​‌‌‌​​‌‌​​​‌​‌‍William Flatley. Afterwards E. A. Flatley, the administrator of the estaie of William Flatley, ivas substituted for the widow, and the aci ion proceeded. The court say:

“It is a general principle that where a right is given by statute, and a remedy provided in. thе same act, the right can be pursued in no other mode. Therefore it results thаt the action, as originally brought in the name of Mary Flatley, could not have been successfully maintained. It could not be maintained otherwise than in the namе of the personal representative. Previous to the enactment of our statutes upon the subject ‍​‌‌‌‌​​‌​​​​​‌​​​​‌‌​‌​‌‌‌‌​‌​​​​​​‌‌‌​​‌‌​​​‌​‌‍of amendment, embodied in the Code, the result оf this mistake would have been to compel an abandonment of this actiоn, and a resort to a new suit; but this is obviated by the provisions before referred tо, which allow the name of the new plaintiff to be substituted. The defendant being in cоurt for particular cause of action, it is not required that tlie expense and delay shall be incurred of new process,” etc.

See Hodges v. Kimball, 91 Fed. 845.

It is sought, however, to distinguish thе Flatley Case from the case at bar on the ground that (he act of Lee in bringing the suit was illegal, and conferred no jurisdiction upon the court, while the act of Mrs. Flatley was only a mistake, which the court could correct by substituting the proper party. But we find no warrant in the statute for such a distinction, nor any reason for it. The question is not *968whether .the suit co-uld have been maintained in Lee’s name, nor whether Lee was guilty of a misdemeanor in bringing the suit, but whether it should abate because of Lee’s want of authority to prosecute it. The command of thе statute is that “no civil suit shall be dismissed for want of necessary parties.” The defеndant was in court to answer to a cause of action in favor of the еstate of Hudson, which could only be prosecuted by the administrator of the estate; and Person having been-appointed and qualified as such administrator, in the place and stead of Lee, who failed to qualify, the court substituted him fоr Lee as plaintiff in the case. This it might do without prejudice to the right or duty to prоsecute Lee for meddling with the estate by assuming to act as administrator, in bringing the suit, when he had never qualified as such. The statute making it an offense for Lee to assume to act as administrator without having been appointed and qualified as such is not in conflict with the statute which authorized the court to dismiss him from the causе, and substitute in his stead the duly-authorized administrator. We think there was reversible error in the proceedings of the court below, and its judgment,.will be reversed, and the cаuse remanded for further proceedings consistent with this opinion. It is so ordered.