17 F. 589 | U.S. Cir. Ct. | 1883
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.
“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in so far as the section may relate to the method óf proceeding and practice, and, in this respect, it is virtually superseded by the clause before referred to, of the act of 1872.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 support. It reads as follows: -
“ When either of the parties, whether plaintiff, petitioner, or defendant, in any suit in any court of the United States, dies before final judgment, the ex- ' eeutor or administrator of such deceased party may, in case the cause of action survives by law, prosecute or defend such suit to final judgment.”
This simply provides for bringing in the legal representatives, where a party dies pending suit, in cases wherein the “cause of action survives by law.” The purpose of the section is to give effect in the federal court to state statutes, preserving causes of action cognizable in the state courts, and over which the state legislature may lawfully exercise authority,—causes of action of which the federal courts obtain concurrent jurisdiction, by reason of the citizenship of parties. In the case before us the cause of action, founded upon a federal statute, is beyond the reach of state legislation. The local law invoked has, therefore, no effect upon it; is consequently inap
Our conclusion, therefore, is, that the right of action terminated with the death of tlíe defendant. Were it held otherwise, for. the reasons urged by counsel, there would be one rule of action in this respect governing suits by the United States for penalties for infractions of its copyright laws in one state, and another in other states, dependent upon local legislation respecting the survival of action.
Vide U. S. v. Richardson, 9 Fed. Rep. 804; Sarony v. Burrow-Giles Lith. Co., infra.