Joseph McKenna

“ Section 955 of the Revised Statutes of the United States provides as follows:
'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. ”

“ 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.
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. ”

“ 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. ”

“ 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.,
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. ”

“ 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. ”

“ 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. ”

“ 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. ”