United States Supreme Court Cases & Opinions

U.S. Supreme Court

In re Conway, 178 U.S. 421 (1900)

In re Conway

No. 9, Original

Submitted April 9, 1900

Decided May 28, 1900

178 U.S. 421

Syllabus

A national bank was closed by order of the Comptroller of the Currency and a receiver appointed. An assessment was made upon the holders of stock. Overton and Hoffer were among those who were assessed, and payment not having been made, suit was brought against them. Service

Page 178 U. S. 422

was made upon H., but not upon O., who was very ill, and who died without service having been made upon him. He left a will, under which J. P. O. was duly appointed his executor. The executor was summoned into the suit by a writ of scire facias. A motion was made to set aside the scire facias and the attempted service thereof, which motion was granted. The executor being substituted in the place of the deceased as defendant, the court decided that it had acquired no jurisdiction over the deceased, and could acquire none over his executor. Thereupon the receiver applied to this Court for a writ of mandamus to the Judges of the Circuit Court of the United States for the Ninth Circuit commanding them to take jurisdiction and proceed against J. P. O. as executor of the last will and testament of O., deceased, in the action brought by the receiver to recover the assessments. Held:

(1) That mandamus was the proper remedy, and the rule was made absolute.

(2) That the action of the circuit court in setting aside the scire facias was here for review.

(3) That scire facias was the proper mode for bringing in the executor, and under Rev.Stat. § 955, it gave the court jurisdiction to render judgment against the estate of the deceased party in the same manner as if the executor had voluntarily made himself a party.

The case is stated in the opinion.