For tbeseamong' briefly stat«1, 'fntheab,eence ,of express ruling by court of the state, I agree with my brother FOSTER, and 'overrule the defendant's motion' fot anew
trw.
HOWTH,
Adm'r,
etc., and others ". OWENl'I and:iothers. April 6,1887.)'
(Oircuit CoUt"t, 8. D. Georgia, B. D. RBVIVAL-DBATH-ORDEB
Where an unconditiun,aJorder, sigJI.ed by the judge and dU', enrolled, strlk· ing the name of a decedent from tPe cause, was taken, and eight years there· after application was made for leave' to ,file a bill of revi,vor,in the 'absence of any explanation of the order of dismissal, leave to be (ByllabfU btl tM Court.)
B'1'BmmG OUT
DECEDENT'S N.u£E.
, Application for Leave to ,File a Bill ,of Revivor. Charle8N. West, for tqep:lQtion. , J. R., Sa'llM/l., for, the SPEER, J. On May 26, 1873, the original bill was filed against George $,. Qwens, and Julian Hartridge, as the M. pe , The bill a devastavit, and prayed It general account. 1n'1879, Julian Hartridge testate, andl\{ary M. Hartridge qualified; as his executrix. On June 3, 1879, counsel,for complainapt took Jpefollowing order: .. William E. Howth aM others vs. 6eorge S. Owens and ,other·· '''Thecottlplainant suggests that since the last term of tbe court Julian one, of the defendants, has died, and on their motion it is ordered t1)at his name be stricken from the cause, and that the caUile proceed against the other defendants. ,It is further order6\l that the time for taking testimony In said case be eXtended to the first day oUlle next term: .. "J08E1'lJ: BRADLEY, Circuit Justice." , .. I
At tbisterm the cause on:f(lr final hearing and the George S. Owens, for himself and as executor of Thomas E. Lloyd, who lwilong ago died, filed a plea forth the fjtct that Mary M. Hartridge, as the execlltrix, of .r.ulian Hartridge f was a neqessary party, and that the cOIl).plainants having voluntarily the bill as ,to her, by: striking the name of her testator therE\iroDl,that the action was barrec,I as to the. co-executors.. Tllis plea was to, and this hela bill having framed for II. account of trust in the hands of trustees, that all of the e;xecutors were ,essary.pl;U'tieS,;Ilnd sustained pleai also,holding that.a.plea for want of plea in bar, goes to the vrhole 1;>ill. Howth v· .' Rep.· 722. The complllinantsnow leave to. t1;lil). of ,revivor against Mary M.Hartrijige"as e:Jecritrixof Julian Hartridge, and this is by :het., .:"
911
'The "revivor o{'asui1; inequity by or against the representative of 'a deceased party is a matter of'right and a mere continuation of the originalsuit.. Ji'itzpat:ric7c v. Domingo,14 Fed. Rep. 216; Clarke v. Ma.thew8on, 12 Pet. 164. But thinight does not exist where there has been an un<Jonditional order dismissing the original suit, signed by the court and duly enrolled. To file a bill of revivor against the representative where the suit! has simply abated for the time, because of the death of one of the is quite distin.ctfromthe recointnencement of a suit which has bei!in fonnally and unconditionally abandoned. ' The 6tder in this, taken nearly eight years striking the name of Julian Rartridge from the record was unconditional. There is no pretenSe that it was done through inadvertence. It does not appear that it'WM done because of any defect in the pleadingsj for want of jurisdic'tionjbecause the complainant bad an adequate remedy at laWj or for any6ther ground whiclidid Dot go to the 'merits. Such a dismissal' is a,firiaI'dete'rmination. . Duralnt v. &sex 00.,7 Wall. 109. ,: 'Hadtbecomplainants rebtined any intention to proceed further against the: 'eState of Julian Hartridge·this order Striking his name from, the Tee6rd; it;is presumed, would not haJve been taken. The gener8J. practice in this country and in England, when a bill in equity is dibwssed, wMre ,Were is an intention further to litigate the involved, is to 'UseWOMS of qualification in. the ()rder, such as "without prejudice," or st>me:e'quivalent tenn, resetving therightto take further steps. 2 Daniel, Chi. Pt'. 994; Durant v.·Es8e.t 00., Bttpra. ,Where 'such, words of qualifi<mtiondonot appear milie order, the distnissaJ. is presumed to be rendered 'on the merits. " The'tDatter in- the bill of revivor sought 'is precisely thifsatrie as 'in the original bill. ' There is no ,fraud, accident, or mistake, which is insisted upon to justify this motion, The dismissal been very deliberatelydone,indeed',' and the presentcoun'8elfbr' senserespbnsible for it. The matter here involved has' 'pl!lsseditn ,.em jud'icatum,and.even had it ,done byroiiltake, it is doubtful whether it should be revoked after the great lapse\of tithe which has intervened.. ' Interest ,.cipublicre ut sit finiB litium, 'ilid to this classical condensation of a usefUL'andsettled legal principle with equal appropriatenessthe ma'Xim equally useful, and as well settled, 'Vigilantibua et non dormientibuB jura BUbveniwnt. All reason- ' able analogies to be drawn from statutes of limitation would go to defeat this motion. Bills of review in Georgia may be brought in three years. Code, 2919. Equity will grant or refuse its remedies with analogy to the limitation." ' Eq. Jur. M,a. . . ..' It may be thought a great hardship that the complainants cannot now be permitted to litigate their grievances with the representative of Julian Haftridge, but it is true tha,t parties must sometimes suffer because .ooUrtsflnd it impossible tb' depart from those established beyond all question, as-absolutely, necessary .for busihess,'tluj'.trtabllity atidrespect of judgments, and,the permanency of which. al'(l intended to be, of the iransactions therein recited... iJBesides, the ,hardship may, iiot be all on
912 OM side.
ll'llll>ERA.L RlllPORTER.
In the eight years have elapsed since nRme of Julian Hartridge was stricken froll). thia rElcord, it is not PQssible to say what rights have intervened, what's,ettl¢$ents have been made, what debts paid, what legacies assented.to by hia executrix, none of which might have transpired had the bill, been revived and not disz;nissed as to his estate. I find that the main question here resulting, was ;decided in Oheetham v. Ward; 1 Bos. & ca;se was that William Ward and James Ward,gave a joint ,and SE!V6l1al bond to Cheatham; the plea was that Cheatham, ,the· testator,,- :hy,Jtis last. will, appointeQ, William 'Ward one of his executQrs,wpp" With the. ,other eiXecutors, duly proved the will and took upon them,the thereof. There,was ag.. ..murrer to the plea,,,and joinder. c9;urt were \lnanimously of opin·ion for the defendant; andi])YRJll"C.iJ., put the. decision onthisaqknowledged principle, that where, a p¢rSQn,aJ: aQtion is once suspended ,by: the voluntary act of to it, it is forever gone and discharged. This, he said', wa$ e.dmHted,to be the, case there \V!j8 but one obligor, but that th0; very: point in had been decided in the Year, Book, 21, Edw,. IV. Blb., He.: l'IQ.id that thereWlls but one duty extending tg both obligors,' and ,it: ,was;. therefore, pointedly: 'pqt, .that. a of one, al' by one, is of botqi 'lDld that, he, said,putatl end. to tbe..3rgument,. for itrwas the effect of iht} suspensioDs ardjo, one,that rele., disch:;trged, andextingushed the ,action as to both. ,:HEATH; was.9f no the release be by, operation of law,:orby dEled demonstrf1,ting the intent of the party. ROOKE, J.· said the ,o,bligee has it .not in his power to elect to discharge one obligor, with0Ut'discharging the 1 Bos. & P. ';632; S. C. note a, Bac. Abr. D,".and the cases there ,:cited. ,It was insisted ,with great forca :by, the counsel for Mrs. Hartridge, that under the act of the legislature: of Georgia, approved Mll-tch 16, 1869, ·the complainants are barred; the'ilauaeofaction having originated prior to the first of June, 1865; and Adam8 v. Davis,. 47 Ga. 339; Gray v. ,Hodge,50 Ga. 262; Macon &'...4.. R. ,R. v. Ba88, 52 Ga. 13; G088, v. Rob54·Ga.494; Reese v. Talleraon, 7:0 Ga. 443, are cited. I prefer, howto place the decision upon the reasons to which I'have adverted. -d. The motion is denied.
.bt8.
(C\"rcuit Oou7't,D.Oolmaflo. ,May 4, 1887.) i
" .· A pbstmaster at Lewiston; Idaho"with intent to defraud the Rovernment. " ",a.nd without rece.iVing .. po.st-o.mee orders upon., the postr 'master at Pueblo in of the StocIl:growers' Bank. He mailed the orders ,to the bank wi th a letterpurportirlg to be written by one Wilson, and directed 'be bank to dra.w the mOileY,'a.nd hold itaubject to said order. The
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EST()P":