A bill was filed by W., a citizen of Connecticut, against M. and
others, citizens of Rhode Island, in the Circuit Court of the
United States for the District of Rhode Island. An answer was put
in to the bill and the cause was referred to a master for an
account. Pending these proceedings, the complainant died, and
administration of his effects was granted to C., a citizen of Rhode
Island, who filed a bill of reviver in the circuit court. The laws
of Rhode Island do not permit a person residing out of the state to
take out administration of the effects of a deceased person within
the state, and make such administration indispensable to the
prosecution and defense of any suit in the state, in right of the
estate of the deceased.
Held that the bill of reviver was
in no just sense an original suit, but was a mere continuation of
the original suit. The parties to the original suit were citizens
of different states, and the jurisdiction of the court completely
attached to the controversy. Having so attached, it could not be
divested by any subsequent proceedings, and the Circuit Court of
Rhode Island has rightful authority to proceed to its final
determination.
If, after the proper commencement of a suit in the circuit
court, the plaintiff removes into and becomes a citizen of the same
state with the defendant, the jurisdiction of the circuit court
over the cause is not affected by such change of domicile.
The cases of
Morgan's Heirs v.
Morgan, 2 Wheat. 290, 4 Cond. 320; and
Mollan v.
Torrance, 9 Wheat. 537, 5 Cond. 666, and
Dunn v. Clarke,
8 Pet. 1, cited.
The death of a party pending a suit does not, where the cause of
action survives, amount to a determination of the suit. It might,
in suits at common law, upon the mere principles of that law have
produced an abatement of the suit, which would have destroyed it.
But in courts of equity, an abatement of the suit by the death of
the party has always been held to have a very different effect, for
such abatement amounts to a mere suspension, and not to a
determination of the suit. It may again be put in motion by a bill
of reviver, and the proceedings being revived, the court proceeds
to its determination as an original bill.
A bill of reviver is not the commencement of a new suit, but is
the mere continuance of the old suit. It is upon ground somewhat
analogous that the circuit courts are held to have jurisdiction in
cases of cross-bills and injunction bills touching suits and
judgments already in those courts.
In the 31st section of the Judiciary Act of 1789, Congress
manifestly treats the reviver of a suit by or against the
representatives of the deceased party as a matter of right, and as
a mere continuance of the original suit, without any distinction as
to the citizenship of the representative, whether he belongs to the
same state where the cause is depending or to another state.
Page 37 U. S. 165
Willard W. Wetmore, a citizen of Connecticut, filed a bill to
June term, 1830, of the Circuit Court of the District of Rhode
Island against Henry Mathewson, Cyrus Butler, Edward Carrington,
and Samuel Wetmore, citizens of the State of Rhode Island, claiming
an account of certain mercantile adventures in which he alleged
himself to have been interested, together with the books, invoices,
and list of passengers on board of the ship
Superior, in
which he asserted he was interested, and for a full settlement of
all accounts between him and the defendants, and for such other and
further relief in the premises as the court might think proper.
The separate answer of Henry Mathewson to the complainant's bill
was filed in September, 1830, the answers of the other defendants
having been filed in June or July of the same year.
A supplemental answer was afterwards filed by Henry Mathewson,
and in November, 1831, after various pleadings in the case, counsel
having been heard, the cause was referred to a master to take and
state an account between the parties, &c. The parties appeared
before the master and his assistants, and an examination of the
accounts was had and proceeded in.
In 1834, before a report was made by the master, Willard W.
Wetmore died, and administration of his estate and effects was
granted by and out of the Municipal Court of the City of Providence
in the State of Rhode Island to John H. Clarke, a citizen of that
state, who thereupon filed a bill in the circuit court to revive
the suit and prayed that the same should stand in the same
situation as at the decease of the original complainant, Willard W.
Wetmore.
On 7 July, 1834, Henry Matthewson appeared in the circuit court,
denied the jurisdiction of the court, and moved to dismiss the suit
on the ground that John H. Clarke was a citizen of the State of
Rhode Island, as were also the defendants. At November term, 1835,
the circuit court dismissed the bill for want of jurisdiction, and
the complainant appealed to this Court.
Page 37 U. S. 170
MR. JUSTICE STORY delivered the opinion of the Court.
The original cause was a bill in equity brought by Willard W.
Wetmore, deceased, a citizen of Connecticut, against the
defendants, Henry Mathewson and others, all citizens of Rhode
Island, for an account upon certain transactions set forth in the
bill, and with a prayer for general relief. After the cause was at
issue upon the hearing, it was, by agreement of the parties,
ordered by the court to be referred to a master to take an account,
and pending the proceedings before the master, the intestate died.
Administration upon his estate was duly taken out by the present
plaintiff, John H. Clarke, in the State of Rhode Island, the laws
of Rhode Island requiring that no person not a resident of the
state should take out letters of administration, and also making
such administration indispensable to the prosecution and defense of
any suit in the state in right of the estate of the intestate.
Clarke filed a bill of revivor in the circuit court in June,
1834, in which he alleged himself to be a citizen of Rhode Island
and administrator of Wetmore, against the defendants, who he
alleged also to be citizens of the same state. So that it was
apparent upon the face of the record that the bill of revivor was
between citizens of the same state. Upon motion of the defendants
at the November term of the circuit court, A.D. 1835, the court
ordered the bill of revivor to be dismissed for want of
jurisdiction, and from this decretal order the present appeal has
been taken by the appellant.
Page 37 U. S. 171
The case, as it was decided in the circuit court, is reported in
2 Sumner 262, 268, and the ground of dismissal was that the bill of
revivor was a suit between citizens of the same state. The
Judiciary Act of 1789, ch. 20, sec. 11, confers original
jurisdiction upon the circuit courts of all suits of a civil nature
at common law and in equity where the matter in dispute exceeds the
sum or value of five hundred dollars and the United States are
plaintiffs or petitioners, or an alien is a party, or the suit is
between a citizen of the state where the suit is brought and a
citizen of another state. If, therefore, the present had been an
original bill brought between the present parties, it is clear that
it could not have been maintained, for although the plaintiff could
sue in
autre droit, and as administrator of a citizen of
another state, yet the suit would be deemed a controversy between
him and the defendants, and not between his intestate and the
defendants. This is the necessary result of the doctrine held by
this Court in,
Chappedelaine v.
Decheneaux, 4 Cranch 306, and
Childress
v. Emory, 8 Wheat. 642.
The circuit court treated the present case as falling within the
same predicament. In this we are of opinion that the court erred.
The bill of revivor was in no just sense an original suit, but was
a mere continuation of the original suit. The parties to the
original bill were citizens of different states, and the
jurisdiction of the court completely attached to the controversy;
having so attached, it could not be divested by any subsequent
events, and the court had a rightful authority to proceed to a
final determination of it. If, after the commencement of the suit,
the original plaintiff had removed into and become a citizen of
Rhode Island, the jurisdiction over the cause, would not have been
divested by such change of domicile. So it was held by this Court
in
Morgan's Heirs v.
Morgan, 2 Wheat. 290,
15 U. S. 297,
and
Mollan v.
Torrance, 9 Wheat. 537, and
Dunn v.
Clarke, 8 Pet. 1.
The death of either party pending the suit does not, where the
cause of action survives, amount to a determination of the suit. It
might in suits at common law, upon the mere principles of that law,
have produced an abatement of the suit, which would have destroyed
it. But in courts of equity, an abatement of the suit, by the death
of a party, has always been held to have a very different effect,
for such abatement amounts to a mere suspension, and not to a
determination of, the suit. It may again be put in motion by a bill
of revivor, and the proceedings being revived, the cause proceeds
to its
Page 37 U. S. 172
regular determination as an original bill. The bill of revivor
is not the commencement of a new suit, but is the mere continuation
of the old suit. It is upon a ground somewhat analogous that the
circuit courts are held to have jurisdiction in cases of
cross-bills and injunction bills touching suits and judgments
already in those courts, for such bills are treated not strictly as
original bills, but as supplementary or dependent bills, and so
properly within the reach of the court, although the defendant (who
was plaintiff in the original suit) lives out of the jurisdiction.
A very strong application of the doctrine is to be found in the
case of
Dunn v. Clarke,
8 Pet. 1, where an injunction bill was sustained although all the
parties were citizens of the same state, the original judgment,
under which the defendant in the injunction bill made title as the
representative in the realty of the deceased, having been obtained
by a citizen of another state in the same circuit court.
But if any doubt could upon general principles be entertained
upon this subject, we think it entirely removed by the 31st section
of the Judiciary Act of 1789, ch. 20. That section provides that
where, in any suit pending in the courts of the United States,
either of the parties shall die before final judgment, the executor
or administrator of such deceased party, who was plaintiff,
petitioner or defendant, in case the cause of action doth by law
survive, shall have full power to prosecute or defend any such suit
or action until final judgment, and that the defendant shall be
obliged to answer thereto accordingly, and the court before whom
the cause is depending is empowered and directed to hear and
determine the same and to render judgment for or against the
executor or administrator, as the case may require. Other auxiliary
provisions are made to carry this enactment into effect. Now in
this section Congress manifestly treat the revivor of the suit by
or against the representative of the deceased as a matter of right,
and as a mere continuation of the original suit, without any
distinction as to the citizenship of the representative, whether he
belongs to the same state where the cause is depending or to
another state. Of the competency of Congress to pass such an
enactment under the Constitution no doubt is entertained. The
present case falls directly within its purview, and we are
therefore of opinion that the decree of the circuit court
dismissing the bill of revivor ought to be
Reversed and the cause remanded to the circuit court for
further proceedings.
I take this opportunity of adding that I fully concur in all
the
Page 37 U. S. 173
reasoning of this Court on this subject. After the decision had
been made in the circuit court, upon more mature reflection I
changed my original opinion, and upon my expressing it in the
circuit court, and upon the suggestion of the judges of that court,
the case has been brought here for a final determination. I hope
that I shall always have the candor to acknowledge my errors in a
public manner whenever I have become convinced of them.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Rhode Island and was argued by counsel. On consideration whereof it
is now hereby ordered, adjudged, and decreed by this Court that the
decree of the said circuit court dismissing the bill of revivor in
the cause ought to be and the same is hereby reversed, and that
this cause be and the same is hereby remanded to the said circuit
court for further proceedings to be had therein in conformity to
the opinion of this Court and according to law.
