35 F. 691 | U.S. Cir. Ct. | 1888
Damages are claimed for alleged misrepresentations by the defendant concerning a firm of merchants to whom the plaintiffs gave credits that have been lost. There was a mistrial before a jury, and afterwards the defendant died. The motion for a revival of the suit is resisted upon the ground that the “cause of action” does not “survive by law” against the defendant’s executor. Rev. St. § 955. If the decision of the question of the right of revival depended upon the determination of the law of Tennessee as to the survival of a cause of action like this as contradistinguished from the right of a plaintiff to revive a suit already commenced, it must be confessed that the subject would be involved in the greatest obscurity and doubt. The position of the defendant’s executor is that, by the very terms of the act of congress above cited, it is required that the cause of action shall survive before a suit in the federal court can be revived by or against an executor or administrator; that, congress having prescribed this rule for the revival of suits in the courts of the United States, it is wholly immaterial that the state of Tennessee has prescribed a different rule concerning suits in the courts of that state, the legislation of congress being necessarily exclusive; and that as this cause of action could not, under the law of Tennessee, be originally brought against an executor, this suit must abate. This is a very strong position, which is supported by a line of reasoning conclusive of its soundness as well as by all the authorities construing the act
This is admitted by defendant’s counsel as to suits in the state court, but they insist that the act of congress imposes a different rule on our federal courts, by referring the right of the revival of a suit in those courts to the test of the survivability of the cause of action, and not to the test of the right of revival of a suit which might have been brought in another tribunal, but was not. If we keep in view the distinction between the survival of a. cause of action and the revival of a suit brought upon it, so much insisted upon by defendant, the fallacy of this contention will appear, unless we are again confused by the fact that, owing to the peculiarity of our local law, already mentioned, the one sometimes depends upon the other, and the two are yet in such cases to be kept entirely separate and distinct, in applying this act of congress. The right to revive this suit in no sense depends upon the right which would have existed in the plaintiffs to revive the self-same suit if it bad been brought in a state court of competent jurisdiction; but it is because the requirement of the act of congress has been met, and the identical “cause of action” upon which this suit is founded “survives by law,” that the right of revival has attached. It can make no difference that this survival of the cause of action- depends upon the condition precedent that a suit shall have been brought upon it in the life-time of the alleged tort-feasor; for the legislature of the stale may attach whatever condition it chooses, establish whatever exceptions it may wish, and in whole and in part create and regulate the right of property involved; and that is precisely what this is. And by this local law, whatever it may be, the federal courts are bound, just as they are in administering any other rights of property created by local legislatiqn. Nor can it make any difference that other causes of action precisely like this, upon which no suits have been brought, do.not survive by reason of that fact; for it is this cause of action,—the one which is embodied in this suit, and not any other cause of action,—which must survive to save the right of revival of the suit, under the act of congress; and this survives because of the existence of the very suit to be revived, and not because of any other fact whatever. The act of the state legislature does not prescribe as a condition that the suit, the bringing of which breathes the breath of survivability into the nostrils of “the cause of action” embodied in it, shall •be brought in the state court, to have that quality. To read it so would
Having reached this conclusion, it becomes unnecessary to decide whether a cause of action for deceit like this survives in Tennessee when no suit has been commenced in the life-time of the parties to the transaction about which the complaint is made, although it would not be improper, perhaps, to express an opinion upon it, since, if it does survive, the plaintiffs here would be entitled to a revival of this suit without regard to the point already determined, and the question is therefore technically involved in this motion. I shall not, however, burden this opinion with its consideration, hut have assumed for the purposes of this motion that it does not survive.
In support of the ruling here made the first essential observation is to note with emphasis the distinction between the abatement of a suit by the death of one or both of the parties to it, and the abatement of a cause of action by force of the maxim, acMo personalis moritur cum persona. Broom, Leg. Max. 904. The first is a matter of procedure, purely so; and congress has made its own rule, as it may, and by the practice conformity act likewise adopted the state practice where its own legislation does not control. At common law, every suit, whether founded on contract or tort, abated by the death of either party, and could proceed no further. It absolutely perished. One class of English statutes having the force of common law with us abrogated this rule, and allowed the executor or administrator to come in voluntarily or be brought in by scire facias, 17 Car. H. c. 8; 8 & 9 W. 3, c. 11; Fost. Sci. Fa. 174, 186-200. It was a condition of these statutes that the revival could take place only “if such action might be originally prosecuted, or maintained by or against the executors or administrators of the party dying,” (Id. 187;) that is to say, provided the “cause of action” should be unaffected by the deadly force of the above-mentioned maxim. Now, where or when it
But this is a property right growing out of the absolute dominion of the legislature over the property or estates of dead men, and over their affairs in their relations to the living. Peake v. Railroad Co., 26 Fed. Rep. 495. And while congress may and does undertake for its own courts to determine the matter of procedure concerning the abatement of suits,— whether they shall remain abated, and the parties left be sent to bring new suits wherever they have that right, or whether they may assert that same right of action which has been transmitted to them by a revival of the suit already brought,—it is not, perhaps, within the power of congress to say what causes of action shall or shall not survive to or against executors or administrators; or, to put it another way, it does not belong to congress to meddle with this old maxim of our law. And it has not undertaken to do so by the act. Rev. St. § 955. Again, congress has' not by that act re-enacted the first class of English statutes above referred to concerning the abatement of suits. It has legislated upon the same subject, and adopted the same principle, that suits shall not be abated by the death of parties; but it has not attached the same conditions to the right of revival, and, if the above reasoning be correct, has not the power to attach the same conditions in the sense that it may prescribe what causes of action shall or shall not survive, while regulating the procedure upon the abatement of suits by the death of parties, as the Ten
The case of Schreiber v. Sharpless, 110 U. S. 76, 3 Sup. Ct. Rep. 423,
The decisions in other states depend on the particular statutes which have been enacted in most of them, and care is required not to be misled by them, and it is doubtful how far our courts may follow the modern English decisions expounding the operation of this ancient act of parliament. The first North Carolina act of 1785 provided only against the- abatement of appeals, and that of 1786 against the abatement of sails by the death of either the plaintiff or defendant, and these became a part of the Tennessee law by the act of cession of the territory, and are the origin of our later Tennessee statutes on that subject. Subsequently, in 1799, after the eession'of Tennessee territory, North Car
Attention should now be fixed upon the peculiar structure of the Code of 1858 upon this matter. Section 2845 enacts: “Actions do not abate by the death, marriage, or other disability of either party, or by the transfer of any interest therein, if the cause of action survives or continues.” Manifestly this is an accurate declaration of the law of Tennessee as it stood at that date under the legislation and decisions above cited, but it docs not at all provide for the survivability of any cause oí' action, and would leave the matter in the state courts precisely on the same footing that it stands in the federal courts under the Revised Statutes, § 955,—the effect of the two sections being the same. That section, however, does not declare the whole law of the subject as it then existed. It enacts from the act of 1836 the declaration that actions, meaning smis, shall not abate by the death, (as they did not under former acts,) and from other acts the same declaration as to the effect of marriage, etc., if they survive; but it did not undertake to enact, as did the act of 1836 and only that act, that the commencement of a suit should, with certain exceptions, endow the cause of action embodied in the suit with the quality of survivability; and it leaves that matter for attention in the next section, 2846, as follows: “No civil actions commenced, whether founded on wrongs or contracts, except actions affecting the character of the plaintiff, shall abate by the death of either party, hut may he revived.” Taken together, the two sections harmonize only on the theory that the
Mention should be made of that separate, if not independent, class of statutes modeled on Lord Campbell’s act, which some of the above cases involve, but which illustrate and support the correctness of this judgment, not only by their analogy, but by their entire harmony with the other statutes only on the theory of this judgment. Their very existence demonstrates that the proper effect has been here given to the legislation, and that this analysis of it is correct. But it must be remembered that commencing in 1831, chapter 17, those statutes provide for the survivability of the “right of action” for injury to the’person where death was caused by the injury, and not to any other “rights of action whatever.” As to those resulting in the death of the victim of the wrong, suit may be brought after that death; this being by these statutes established as an exception to that general rule above considered. Thomp. & S. Code, §§ 2291, 2294; Mill. & V. Code, §§ 3130-3135.
The result may be stated that our Code leaves the. survivability of causes of action in all cases except of injury to the person resulting in death, where the common law and ancient statutes of England left it, unless suit be brought before a death which would otherwise abate the cause of action, and, in that event, it always survives, no matter what its nature may be, if it does not affect the character of the plaintiff, in which latter case alone does a suit already brought abate, in that class of suits known as personal actions as contradistinguished from those affecting real property, as to which last class of actions this opinion has taken no notice, and has no concern. Motion granted.
Note by Judge Hammond. Refraining from tlie expression of any judicial opinion upon the survivability of this cause of action, independently of the suit which saved it, there may be no impropriety in saying that I have examined a great many of the decisions upon the general subject, and all that I could find upon this particular kind of action, as they will be disclosed by reading the authorities cited in the opinion, and examining the digests, and they seem to me to indicate that, aside from peculiar statutes to be found in several states, the survivability depends upon the circumstances of each case. Whether founded in contract or tort, or whatever the cause of action, which distinctions are only auxiliary guides in the consideration of the facts, if the property of the victim of the tort has been directly, and not remotely and incidentally only, injured by the wrong done, then there is a right of revival, otherwise not; some authorities, and perhaps all, require any such injury to be averred in the pleadings, especially if the damage be not apparent, as a direct result of the wrong. Therefore, some actions of deceit for falsely represent