178 U.S.

421
20 S.Ct. 951
44 L.Ed. 1134

Ex parte: In the Matter of W. P. CONNAWAY, Receiver of the

Moscow National Bank of Moscow, Idaho, Petitioner.
No. 9, Original.
Submitted April 9, 1900.
Decided May 28, 1900.

Messrs. W. L. Hillyer, Curtis Hillyer, and Olin L. Berry for petitioner.

Messrs. W. H. Anderson and Jesse W. Lilienthal for respondent.
Mr. Justice McKenna delivered the opinion of the court:

This is a petition for a writ of mandamus to the judges of the circuit court of the
United States for the ninth circuit and district of California, which substantially
shows as follows:

The Moscow National Bank of Moscow, Idaho, was a corporation organized

under the national banking laws of the United States, with its place of business
at Moscow, Idaho.

The bank, becoming insolvent, was closed by order of the Comptroller of the
Currency of the United States, and taken control of by that officer.

On January 3, 1898, he appointed petitioner receiver of the bank's assets.

On June 14, 1897, the Comptroller made an assessment of $100 on each share
of the capital stock of the bank, and ordered the stockholders to pay the same
on or before July 14, 1897. O. P. Overton and C. A. Hoffer were owners of one
hundred shares, and by the assessment became indebted to petitioner in the sum
of $10,000, with interest from June 14, 1897.

On March 28, 1898, petitioner commenced an action in that court against said

Overton and Hoffer for the said sum of $10,000, and caused a summons to be
issued, directed to them as defendants, and placed it in the hands of the marshal
for service.
7

Service was made in the usual form by the marshal on Hoffer personally, in
Santa Rosa, in said district.

As to Overton, the marshal made the following return on the 5th of April, 1898:
'I hereby certify that I was unable to make personal service on O. P. Overton, as
he was very sick, and was not permitted to see anyone, under instructions of his
physicians.'

On April 13, 1898, O. P. Overton died without service having been made upon
him.

10

He made a last will and testament, appointing John P. Overton executor thereof,
which was duly probated, and letters testamentary were duly issued.

11

On March 15, 1899, these facts were brought to the notice of the circuit court,
and petitioner moved for and obtained an order directing that a writ of scire
facias issue to said John P. Overton, which concluded as follows: 'You are
hereby commanded within twenty days after the service upon you of this writ to
appear and become a party to this suit, according to the provisions of 955 of
the Revised Statutes of the United States, or show cause why you should not,
otherwise judgment may be taken against the estate of said deceased in like
manner as if you had voluntarily made yourself a party.'

12

The writ was duly served and a motion was noticed for April 17, 1899, for an
order setting aside the scire facias 'and the attempted service thereof.'

13

The ground of the motion was that 'Overton died before the service upon him of
any process, that no process was ever served upon him herein, and that this
action was never pending against him; and upon such other grounds as to the
court may seem proper.'

14

The motion was granted, and the petitioner allowed an exception.

15

On June 12, 1899, upon the suggestion of the death of defendant O. P. Overton,
the court made an order substituting John P. Overton as executor of the last will
and testament of O. P. Overton, deceased, as defendant, and ordered an alias

summons to issue to him as executor.

16

The summons was duly served, and on August 11, 1899, he, by his attorneys,
filed and served a noic e of motion to set aside the order of substitution and
quash the alias summons, on the ground 'that said O. P. Overton died before the
service upon him of any process herein; that said alleged alias summons is not
in the form required by law, and upon such other grounds as to the court may
seem proper.'

17

The matter coming on to be heard on November 20, 1899, and having been
submitted, it was granted on December 4, 1899, and petitioner was allowed an
exception.

18

The petition for a writ of mandamus alleges that the ground upon which said
court set aside the service of summons was that the action had abated by the
death of O. P. Overton before the service of process upon him; and prays that a
writ of mandamus be issued to the judges of the circuit court of the United
States aforesaid to take jurisdiction and proceed against John P. Overton as
executor as aforesaid.

19

A rule to show cause was granted. The return thereto by the learned judge of
the circuit court admits that the allegations of the petition as to the proceedings
had in the circuit court are true, except that the court 'has not refused to take
jurisdiction of the action therein referred to, but only of the person of John P.
Overton, executor of the last will and testament of O. P. Overton, the deceased
defendant in said action.' And the return alleged that the grounds upon which
the court set aside the service of the alias summons were stated in the opinion
of the court. 98 Fed. Rep. 574.

20

The basis of the opinion is that the court had acquired no jurisdiction over the
deceased defendant O. P. Overton, and could acquire none over his executor,
John P. Overton.,

21

1. It is objected that mandamus is not the proper remedy. Counsel say: 'This is
not a case in which the court refuses to entertain jurisdiction. The action has not
been dismissed. It is still pending in the circuit court, and may, and doubtless
will, proceed to final judgment.' But final judgment against whom? Not against
O. P. Overton, for he is deceased. Not against John P. Overton or the estate he
represents, because he has not been made a party to the action, and judgment
against Hoffer alone may not be all of petitioners' remedy. If the court's ruling
is errorneous, how can it be redressed by an appeal from the judgment, Overton

not being a party to the action? The court declined to make him a party on the
ground that it had no jurisdiction to do so. If it has jurisdiction, mandamus is
the proper remedy. Re Grossmayer, 177 U. S. 48, 20 Sup. Ct. Rep. 535, 44 L.
ed.. Whether the court had jurisdiction we will proceed to consider.
22

2. The return of the rule to show cause is confined to the action of the circuit
court on the alias summons. But its action for setting aside the writ of scire
facias is also here for review.

23

Section 955 of the Revised Statutes of the United States provides as follows:

24

'When either of the parties, whether plaintiff or petitioner or defendant, in any

suit in any court of the United States, dies before final judgment, the executor
or administrator of such deceased party may, in case the cause of action
survives by law, prosecute or defend any such suit to final judgment. The
defendant shall answer accordingly; and the court shall hear and determine the
cause, and render judgment for or against the executor or administrator, as the
case may require. And if such executor or administrator, having been duly
served with a scire facias from the office of the clerk of the court where the suit
is pending, twenty days beforehand, neglects or refuses to become party to the
suit, the court may render judgment against the estate of the deceased party in
the same manner as if the executor or administrator had voluntarily made
himself party. The executor or administrator who becomes a party as aforesaid
shall, upon motion to the court, be entitled to a continuance of the suit until the
next term of said court.'

25

It is preliminarily urged against this section that it 'applies only where an actio i
'brought in a Federal court, and is based upon same act of Congress, or arises
under some rule of general law recognized in the courts of the Union;' that in
such an action 'the question of revival will depend upon the statutes of the
United States relating to the subject;' but that otherwise it depends upon the
laws of the state in which it is commenced.' Martin v. Baltimore & O. R. Co.
151 U. S. 673, 38 L. ed. 311, 14 Sup. Ct. Rep. 533; Baltimore & O. R. Co. v.
Joy, 173 U. S. 226, 43 L. ed. 677, 19 Sup. Ct. Rep. 387, are cited.

26

In those cases the controversy was over the survival of the action; in the
pending case that is not the controversy. It is not contended that the action does
not survive. It is only contended that personal jurisdiction was not obtained of
O. P. Overton before his death, and that, therefore, his executor, John P.
Overton, could not be brought into the action, either by scire facias, under
955, Rev. Stat., or by motion suggesting the death of his testate and by alias

summons.
27

In Schreiber v. Sharpless [110 U. S. 76, 28 L. ed. 65, 3 Sup. Ct. Rep. 423],
cited in Martin v. Baltimore & O. R. Co. 151 U. S. 673, 38 L. ed. 311, 14 Sup.
Ct. Rep. 533, it was decided that 'whether an action survives depends on the
substance of the cause of action, not on the forms of proceeding to enforce it.'
And that a cause of action on a penal statute of the United States did not
survive, even though causes of action on state penal statutes could be
prosecuted after the death of the offender.

28

In Martin v. Baltimore & O. R. Co., however, the action was for personal
injuries, and it was said: 'Whether the administrator has a right of action
depends upon the law of West Virginia, where the action was brought and the
administrator was appointed. Rev. Stat. 721; Henshaw v. Miller, 17 How.
212, 15 L. ed. 222. The mode of bringing in the representative, if the cause of
action survived, would also be governed by the law of the state, except so far as
Congress has regulated the subject.' It was determined upon consideration that
the cause of action did not survive.

29

In Baltimore & O. R. Co. v. Joy, the question was presented in an unique

aspect. The action was for personal injuries, which occurred in Indiana, and suit
was brought in Ohio. By the laws of the former state the action did not survive;
by the laws of the latter, the cause of action did survive. If suit had not been
brought before the death of the person injured, the cause of action abated in
both states.

30

The cause was removed to the circuit court of the United States, and it was held
that the cause of action survived the death of the person injured, and could be
revived in the name of his personal representative. We said: 'We think that the
right to revive attached, under the local law, when Hervey [the person injured]
brought his action in the state court. It was a right of substantial value, and
became inseparably connected with the cause of action, so far as the laws of
Ohio were concerned.' And it was denied that the right to revive was lost by the
removal of the case to the circuit court of the United States, or affected by
955, Rev. Stat. We said further: 'Whether a pending action may be revived
upon the death of either party and proceed to judgment depends primarily upon
the laws of the jurisdiction in which the action was commenced. If an action be
brought in a Federal court, and is based upon some act of Congress, or arises
under some rule of general law recognized in the courts of the Union, the
question of revivor will depend upon the statutes of the United States relating to
that subject. But if at the time an action is brought in a state court the statutes of
that state allow a revivor of it on the death of the plaintiff before final

judgment,even where the right to sue is lost when death occurs before any
suit is brought,then we have a case not distinctly or necessarily covered by
955.'
31

By 955 an executor or administraor of 'plaintiff or petitioner or defendant in

any suit in any court of the United States,' may be made a party by 'scire facias
served from the office of the clerk of the court where the suit is pending.'

32

When can a suit be said to be 'in any court of the United States,' or said to be
'pending' therein? Is not the answer inevitable, from the time the suit is
commenced? It cannot be pending until it is commenced, and if it continue until
the death of the 'plaintiff or petitioner or defendant,' the requirements of the
section seem to be satisfied.

33

Another inquiry becomes necessaryWhen is a suit commenced? For an

answer we must go to the California statutes. By 405 of the Code of Civil
Procedure, it is provided: 'Civil actions in the courts of this state are
commenced by filing a complaint.' By 406 summons may be issued at any
time within a year, and if necessary to different counties. The defendant may
appear, however, at any time within a year. The filing of the complaint,
therefore, is the commencement of the action and the jurisdiction of the court
over the case. The jurisdiction would undoubtedly continue for a year, and
probably afterwards, and a motion to dismiss would probably be necessary to
get rid of the case. Dupuy v. Shear, 29 Cal. 242; Reynolds v. Page, 35 Cal. 300.

34

3. It is said, however, that jurisdiction of the person of O. P. Overton had not

been obtained prior to his death, and this is undoubtedly true. Service of
summons was necessary for that. It was so decided in Dupuy v. Shear, 29 Cal.
242; and 416 of the Code of Civil Procedure provides: 'From the time of the
service of the summons and of a copy of the complaint in a civil action, where
service of a copy of the complaint is required, or of the completion of the
publication when service by publication is ordered, the court is deemed to have
acquired jurisdiction of the parties, and to have control of all the subsequent
proceedings. The voluntary appearance of a defendant is equivalent to personal
service of the summons and copy of the complaint upon him.'

35

It is claimed that this section precludes jurisdiction of 'the subsequent

proceedings' in the action, unless the summons was served, or, to quote
counsel, 'the circuit court in this instance lacked 'jurisdiction' and 'control' of the
'proceedings,' so far as the defendant Overton was concerned. It was therefore
obsolutely powerless by lay its hands upon the deceased defendant's

representative.' The contention is claimed to be supported by the construction

of similar statutes in Oregon and Minnesota made by their courts. White v.
Johnson, 27 Or. 282, 40 Pac. 511; and Auerbach v. Maynard, 26 Minn. 421, 4
N. W. 816. The latter case sustains the contention, and proceeds to the extent of
denying the court any jurisdiction to proceed further in the action. White v.
Johnson does not go so far. It cites and follows the Minnesota case to the extent
of holding 'that the court is without power or authority to take any action
looking to the rendition of a personal judgment merely without first obtaining
jurisdiction through the service of a summons upon the defendant.' But the
court did not decide that it had no control of subsequent proceedings, but
reduced the question to one of procedure and the necessity of service of the
summons before a personal judgment could be taken. The court admitted that
the statute provided that no action abated upon the death of the party, and
provided that the court might allow the action to be continued on motion, and
that such was the practice in New York and in California under similar statutes,
and then said: 'The statute provides that the court may, at any time within one
year after the death of a party, on motion, allow the action to be continued
against the personal representative, but no provision is made in a case of this
kind as to the manner of bringing in the substituted party. The court could,
therefore, adopt any reasonable procedure that might seem proer , but the
service of a valid summons could not be dispensed with. Probably the better
practice would have been for the lower court to have required the plaintiff to
file a supplemental complaint in the action, showing the death of defendant and
the appointment of an executrix, and thereupon to issue an alias summons
containing the title of the action after substitution made, and have the same
directed to the said Cordelia Johnson. A service of such a summons, together
with a copy of the complaint, would undoubtedly suffice to require her
appearance, in default of which judgment might have been entered against her.
Such a practice and procedure seems reasonable, and well calculated to effect
the desired result in an orderly manner.' The case was reversed, and sent back
for such other proceedings as might be deemed advisable.
36

It is certain that this case is not authority for the contention that the court had
no jurisdiction risdiction or control over subsequent proceedings. It asserted
such jurisdiction, and held that in its exercise 'the court could therefore adopt
any reasonable procedure that might seem proper,' provided a summons was
served.

37

But even if White v. Johnson and Auerbach v. Maynard concurred in holding

that upon the death of a defendant the court could not proceed further in the
action, we should, nevertheless, be unable to assent to the doctrine. At common
law all actions abated by the death of parties before judgment, and to prevent

the application and effect of that principle, 955, preceded by 31 of the

judiciary act of 1789, was enacted, and provisions like that of 385 of the
Code of Civil Procedure of California were also enacted. The section is an
follows:
38

'Sec. 385. An action or proceeding does not abate by the death or any disability
of a party, or by the transfer of any interest therein, if the cause of action
survive or continue. In case of the death or any disability of a party, the court,
on motion, may allow the action or proceeding to be continued by or against his
representative or successor in interest. In case of any other transfer of interest,
the action or proceeding may be continued in the name of the original party, or
the court may allow the person to whom the transfer is made to be substituted
in the action or proceeding.'

39

This section does not make distinctions dependent upon the states of the action
or proceeding. The action or proceeding only needs to exist, and to distinguish
its degrees of progress is certainly to add to the letter of the section.

40

We are therefore disposed to the construction of a similar provision in the Code

of Montana, made by the supreme court of Montana in Lavell v. Frost, 16
Mont. 93, 40 Pac. 146, not only because the construction is in consonance with
the purpose of the statute, but accurate as to its letter.

41

The action was upon a bill of exchange. Frost, the defendant's intestate, died
after the complaint was filed, and the defendant, his administratrix, was
substituted in his stead.

42

The court said: 'It does not appear whether Frost was served with summons
before his death, but the action was commenced before his death. An action is
commenced by filing a complaint. (Code Civ. Proc. 66.) 'An action or defense
shall not abate by the death of a party, but shall survive and be maintained by
his representatives.' (Id. 22.) . . . So far as we are of opinion, there was no
error in the case.'

43

The procedure in California in case of the death of the defendant before service
has not been ruled upon, but in case death occur after service, it was said in
Taylor v. Western P. R. Co. 45 Cal. at page 337: 'It has been the uniform
practice in this state from its organization, so far as we are advised, to permit
the substitution to be made, or a suggestion of the death of the former party and
satisfactory proof, on an ex parte motion, of the appointment and qualification
of the administrator.'

44

The same ruling was made in Campbell v. West, 93 Cal. 653, 29 Pac. 219. And
the practice was emphasized by contrast with that in case of a transfer of
interest otherwise than by death. In such case the court said when the
proceedings were set in motion by the plaintiff or the person to whom the
transfer is made, or by the defendant if for any reason he desires to avail
himself of such transfer for any purpose, it must be made by supplemental
complaint or answer.

45

We see no reason why the representative of a deceased party should not be

brought in by the same procedure, whether the death of a party occur before or
after service, and the language of the statute so expresses. The court would
undoubtedly take care that ample notice was given, and nothing more can be
necessary.

46

The cases in equity cited by petitioner contain some pertinent remarks as to

when a suit may be considered as having been commenced, and in what stage
of the suit it can be revived against the representatives of a deceased party. The
cases cannot be said to be inapplicable to the statutes of states which, like
California, have abolished the difference between legal and equitable forms of
action, and which, under one form of action and the method of procedure of the
state, intend to give, not less, but greater, remedial facilities, and, while
accommodating the relief to the circumstances of the case, expedite the relief
by freeing it from the delays and expense of the old procedure, both in common
law and equity, and to obtain the good in both by a simpler practice.

47

In Gordon v. Tyler, 53 Mich. 629, 19 N. W. 560, 20 N. W. 70, the original

defendants not having been served before their deaths, the court said, in passing
on a motion to set aside the service and dismiss the bill: 'The basis of this
objection is that until a defendant has appeared the suit cannot be treated as
having actually been commenced against him; so that if he dies before
appearance it is as if he had never been in the case, and an original bill is
necessary to reach his representatives. The citation from Daniell's Chancery
Practice seems to favor that idea. But the authorities and practice have
uniformly held that the filing of a bill is the commencement of suit for most
purposes, and we can see no reason for adopting any exceptional rule in such
cases as the present. An affidavit can always be made in a cause as soon as the
bill is filed, and sometimes becomes necessary to support an order for the
appearance of an absentee. A notice of lis pendens may always be filed at once,
and it would lead to very serious mischief if a failure to serve process at once
on a defendant could nullify the effect of such filing. For many purpose it is not
always important whether a bill is a bill of revivor or an original bill in the
nature of one. But for some purposes the difference is very material, and rights

may be seriously jeopardized by holding a failure to get a defendant in before

his death equivalent to a failure to implead him. The evident object of our
statute is to hasten the proceedings by allowing a petition to stand in lieu of a
bill of revivor, and we do not see any good reason for holding that a suit, if
regarded as commenced for any substantial purpose, should not be regarded as
commenced, so as to save all rights as against the estates of a deceased
defendant, appearing or not appearing. No one's rights are injured by so
holding, and important rights may be jeopardized by holding otherwise.'
48

This ruling was reaffirmed in Stevenson v. Kurtz, 98 Mich. 493, 57 N. W. 580.

49

In Maine, an executor of the deceased defendant may be brought in by bill of

revivor. In declaring the practice the court said, in Hubbard v. Johnson, 77 Me.
139: 'The general rule in equity is that, strictly speaking, there is no cause in
court as against a defendant until his appearance. 2 Dan. Ch. 5th ed. 1523. But
in this state, since a bill may be inserted in a writ of attachment (Rev. Stat.
chap. 77, 11), as this was, and a suit is commenced when the writ is actually
made with intention of service (Rev. Stat. chap. 81, 95), an executor may be
brought in by a revivor, although no service has been made with intention of
service (Rev. Stat. Cush. 580.'

50

The same ruling was made in Massachusetts in Heard v. March, and, while
there was no opinion of the court, from the argument of counsel the ruling was
apparently based on the same grounds as in Hubbard v. Johnson, 77 Me. 139,
to wit, that an action was commenced on the day of the date of the writ, that
being the process in chancery.

51

It was said in Lyle v. Bradford, 7 T. B. Mon. 116: 'That the suing out process
has at all times been held the commencement of an action or suit, and that as to
the person against whom process has been issued there must necessarily be a
pending suit from the date of the process, so as to abate and require a revival
upon his death.'

52

There is nothing in Lewis v. Outlaw, 1 Overt. 140, which opposes these views.
Indeed, it affirms them. The court said: 'Agreeably to the practice in the courts
of law in England, all suits abated by the death of either party; nor could they
be revived by scire facias.' The court then proceeded to say that the practice of
chancery in England was upon the death of either plaintiff or defendant to file a
bill of revivor against the representatives of the deceased, and, applying this
practice to Kentucky under a statute which provided no abatement should occur
by the death of either the plaintiff or defendant, but might be 'proceeded upon

by application of the heirs, executors, administrators, or assigns of either party,'

said: 'It seems clear that all revivals, to comport with the principles of reason
and the English practice, should be made by causing appropriate process to
issue so as to make the representatives of the deceased parties in a legal
manner. To revive a dormant judgment a scire facias is necessary. To revive in
chancery the authorities show that a bill must be filed, and process issued
thereon, to which the representatives may make such answer as the nature of
the case may require.' Hyde v. Leavitt, 2 Tyler (Vt.) 170, cited by respondent's
counsel, must be considered as peculiar to the practice in Vermont.
53

The statute of the state was very similar to 955 of the Revised Statutes of the
United States, supra, and it was held, reversing the lower court, that
notwithstanding Griffin, the deceased, had been personally served with the
writ, as it was made returnable June term, 1801, and as Griffin died before
essoin day, his administrator could not be made a party under the statute. The
ground of the decision seemed to be that the suit could not be considered as
pending until it was entered in court. The contrary was held in Clindenin v.
Allen, 4 N. H. 385. The same contention was made which was made in Hydc v.
Leavitt. The court decided that, 'as the term 'pending' means nothing more than
'remaining undecided,' an action may, without doubt, be considered as pending
from the commencement.' And we may say that Hyde v. Leavitt did not long
remain law in Vermont. At their October sessions, 1804, the general assembly
amended the statute to make the commencement of the suit, in case of the death
of either party, the same as to rights for and against executors as existed in a suit
which was 'pending,' using this word, no doubt, to meet the ruling of the court.

54

However, the discussion to the extent we have carried it may not be necessary.
Section 955, Rev. Stat., determines when the representative of a deceased party
may be brought into an action, and that scire facias is the procedure whereby he
may be brought in. And it is not confined to a case where a judgment has been
obtained. It is a process of notice to the executor or administrator to come in,
and, if he should not come in, gives jurisdiction to the court to 'render judgment
against the estate of the deceased party, in the same manner as if the executor
or admni strator had voluntarily made himself a party.' This is the language of
the section. If doubt there can be of its construction, it is removed by the case
of Green v. Watkins, 6 Wheat. 260, 5 L. ed. 256, and Macker v. Thomas, 7
Wheat. 530, 5 L. ed. 515.

55

In Green v. Watkins, the court, passing on 31 of the judiciary act of 1789, of

which 955 and 956, Rev. Stat., are reproductions, pointed out the distinction
between the death of parties before judgment and after judgment, and said : 'In
the former case all personal actions by the common law abate; and it required

the aid of some statute like that of the 31st section of the judiciary act of 1789,
chap. 20, to enable the action to be prosecuted by or against the personal
representative of the deceased, when the cause of action survived.'
56

The enactment of the section was to provide against the abatement of actions
which would otherwise abate at common law, and we cannot confine its
remedy to the cases where death occurs after judgment. In other words, confine
its remedy to the cases where the common law already afforded a remedy. See
also M'Coul v. Lekamp, 2 Wheat. 111, 4 L. ed. 197, and Hyde v. Leavitt, 2
Tyler (Vt.) 170.

57

Except when considering the objection made here to the remedy by mandamus,
we have treated the case as if O. P. Overton, the deceased party, was the sole
defendant, and that the action necessarily abated unless there was a saving
statute. But he was not the sole defendant, and the action did not abate at
common law if the cause of action survived against the other defendant. We
assume (the record does not enable us to determine absolutely) that it did, and
the reason for bringing in the representatives of the deceased defendant is the
stronger.

58

We think, therefore, that the Circuit Court erred in setting aside the scire facias
and the rule for mandamus is made absolute.