Respondent Brief in Opposition to Petition for Writ of Certiorari — James v. United States

Ottice-Supreme Court, U.S.

FILED

— OCT 15 1964

JOHN F. DAVIS, CLERK

neem tearm et sem renee tee er mae arane

IN THE

Seueeet Court of the Lnited States.

OCTOBER TERM. 1964

“No. 509

‘ F

EVVA GERTRUDE KING, ADMINISTRATRIX OF THE

EsTaTE OF ANDERSON J. KING, DECEASED,

Defendant — Petitioner

~ BLANCHE J. SIMMONS, “ADMINISTRATRIX OF THE

EsTATE OF CRONER G. SIMMONS, DECEASED.

Plaintiff — Respondent

RESPONDENT'S BRIEF IN 9PPOSITION

TO THE

PETITION FOR WRIT OF CERTIORARI

Howard E. Manning

MANNING, FULTON. & SKINNER |

600 Capital Club Building

Raleigh, North Carolina

Joseph C. Moore, Jr. ;

YOUNG, MOORE & HENDERSON

Insurance Building

Raleigh, North Carolina’

Attorneys for Respondent

BYNUM PRINTH NG CO — RALEIGH N OC

INDEX

PAGF

_ Objections to Jurisdictional Grounds. ........0.00.0 jcc. I

eS SR ne Oe PUES irra 2

DIE caldera sicunsercacatlove disanetctumneskinbvitnserinnssestnsmnsannta 7

RN aaron sot cnc seen Diceeanis icetee eadeaciata 19

CITATIONS

CASES

Anderson t. Yungkau, 329 U.S. 482, 67 Sup. Ct.

428, gt L. Ed. 436 (1947) ....2 200008. kasi habe IO, 18

Bush v. Remington Rand, 213 F. 2d 456

Cate Cie, 1G ED on ccesenes.cneccecnsnqerssonenesenecersecereneaseaie $y 16

Cheevers v. Burke's ddm., 19 La. 429 (1841)... se 16

_ Conley v. Gibson, 29 F.R.D. 519 (S.D. ‘Tex. 1961) ......12

Ferguson 7. Harder, 141 Nise. 466, 252 N.Y.S.

Ry GE DE SOI recelter Ne AL LOO SiS ONO Ree 16

Vleming v. Sebastiani, 161 F.2d 118 (oth Cir. 1947). 01

Hutheimerv. Melntec, 179 F.2d 789 (7th Cir, 1950) 08

Jovine «. Waterson, 274 ¥. 2d 41

SOE GO BIG, scsetasteandciione. EN ee 7, %. 10, 01

. Mallonee v. Fahey, 200 F. 24 gt (oth Cir. 1982)... 7

Pulley v. Pulley, 255 N.C. 423, 121 S.E. 2d

WD COGOU D ctccnisitcccsonsss dulilihdadedadadiu sebiaahanisaipcsaintenneteés 17

Rive v. Sieux City Memorial Park Cemetery, 449

US. 70.75 Sup. Ct. 614. 99 L. Ed. $07 (1955).0:..... iO

Starnes v. Penn R. Ca., 26 F.R.D2 625 (ELD.

a ee teks As Aleta PS ESTES ney PRE 1

Wavland +. Porterfield's Exec., 38 Ky. G38 41 859)........ 16

Adanch«. Glidden Ca., 2% V RD. 346 (S.D.

Se prs COIR IR ENA hee 1!

} pee”) Ae

STATUTES

‘ | , PAGE

mee oc (4) 7 Fs... ee) ES ane a ae

Rule 25 Ci oo Sy, Una epee Sede Rn ret Reara sen eta re PORE: 17

ae 0 BA. See. 1968 (BF 6c. ee lasiete SR

IN THE

‘Supreme Court of the United States

oc TOBE R TERM, 1964

No. §09 .

EVVA GERTRUDE KING, ADMINISTRATRIX OF THE

stare OF ANDERSON J. KING, DECEASED,

Defendant — Petitioner

©.

BLANCHE J. SIMIMONS, ADMINISTRATRIX OF Tiit

ESTATE OF CRONER G. SIMMONS, DECEASED,

Plaintiff — Respondent

RESPONDENT'S BRIEF IN OPPOSITION

TO THE

PETITION FOR WRIT OF CERTIORARI

OBJECTIONS TO J URISDICTIONAL GROUNDS

The respoadent contends there are no special and im-

‘portant reasons for a review on writ of certierart under

Supreme Court Rule ty in this case. Vhe decision of the

Court of Appeals tor the Fourth Circuit in’ affirming

the judgment below is not in conflict with decisions of

other Courts. of Appeals, or decisions of the United States

Supreme Court. -Furthermoere, a change in the applicable |

statutory law, Federal Rules of Civil Procedure 23° (a),

after this action was begun, has rendered this action a

- matter of concern only between the petitioner and re-

spondent and no longer a niatter of public concern

8

~

: STATEMENT OF FACTS

In. view of the questions raised by the petitioner in

her petition, the following chronology of events in his

case iS important: | .

t.. On December 4, 1959. this action was commenced

in the Superior Court for Wake County, North Carolina.

by the issuance of summons and the filing of respondent's .

complaint, and the summons and complaint were on the

same day served upon the North Carolina Commissioner

of Motor Vehicles. as statutory process agent for the de-

fendant, a non-resident motorist, and all necessary Tur

ther steps for service on the defendant, including the,

sending of the summons and complaint to him by regis: .

tered mail, were completed. .

> On December 22. 1959. the attorneys for the de

fendant filed a petition to remove this case to the United

States District Court ‘for the Eastern District of North

Carolina, and also filed a notice of removal.and bond on

removal. ‘The case was removed to the said Court

3. On December 29, 1959. the defendant's attorneys

tiled an answer in his behalf admitting the colliston,

denving liability, and counterclaiming for $1,427.64 1

property damage. | |

4. On January 7, 1960, the respondent moved the

District Court for an order striking the Fitth Detense

from the defendant's answer, on the grounds that it fail:

cd to state a legal defense.

5. On May 1g, 1960, attorneys for the’ defendant

gave notice of taking, pursuant to the Federal Rules «!

Civil Procedure, the ‘oral, deposition of one Frank Linn,

a witness to the.collision, on June 2, 1g60, in Stuart,

Florida. Fhe said deposition was not taken pursuant: to

this motion. .

6 On September 11, 1960, the defendant. Anderson

J. King, died in New York of natural causes. © -

3

?

7. On December 29, 1960, the defendant's attorneys

gave notice of the taking of the Linn deposition in Flor-

ida on January tt, 1961. oe:

8. On January 1, 961, the said deposition was _

taken in Florida, with both parties being represented by.

Florida attorneys. my. :

9. On December tg. 1961, the defendant's attorneys

filed continuing interrogatories under Federal Rule 33.

te. On December 28, 1961, the respondent answer-

ed certain of these interrogatories, objected to others, and

Objected to the continuing nature of the iNterrogatorres .

4a) The plaintiff filed a Statement of Evidence,

Proposed Issues, and Statement of Facts.

(b) <The attorneys tor the detendant filed a docu

ment entitled “Defendant's Testimony,” siating. among:

other things, that the defendant “proposes to establish by.

his own testimony” certain tacts, and might offer the tes

timony of a highway patrolman to corroborate this tes

timony

(co) The Court signed a Consent Order extending

the time tor completion of discovery to November, 5.

1y62. This Order was signed by the atterners for the re

spondent and the attorneys tor the defendant

13. On September 21, 19%2, the resporndemt, pursuant

to Federal Rule 33, filed interrogatories addressed to the

defendant. On the same dav. a stipulation as to facts and

exhibits was filed by the‘attorness for both parties

14: On September 25. ty62ca Pre-Vrial Order, dated »

September 22. 1962, was filed bs the Court, stating among

other things: “Both parties anticipate that the same will

be ready for trial upon completion of discovery of No

vember 1. 1962, without the necessity of additional Pre

‘Vrial Conference. Fhe case ts therefore calendared for

trial at the next Civil Term to convene in the Raleigh Dp;

vision after November 1, 1962."

4

&

15. On October 3, 1962, the attorneys for the defen-

‘dant mailed to the attorneys for the respondent a stipula-

tion extending ‘time to answer or object to respondent's

interrogatories which were filed on September 21,, 1962.

The letter accompanying the stipulation stated,. among

other things: ee

“We need time-in order to get up with our chent

who, as vou know, is a long-haul truck driver.”

16. On November 6, 1962. the attorneys for the de- |

fendant filed objections to the respondent's interrogatories,

in which they stated that they had learned, for the first

time, on October 3, 1962, that the defendant was dead? Tt.

was only upon the receipt of these objections that the at-

tornevs for the respondent, and the respondent herself,

learned that the defendant had died. Neither the attorneys

for the respondent nor. the respondent herself knew at

this time that the defendant had bgen dead. for any con:

siderable period of time, and assumed that his death was.

quite recent, because of the various.procedural and other

steps which both parties had taken at intervals throughout

“the history of the case, which would not have been appro:

priate had the defendant been dead. ° .

17, On Nevember 27, ig6>, the respondent's attor-

nevs, and through them:the respondent, learned tor: the

first time, through the attorneys for the defendant. that

the defendant had in fact been dead for a considerable

period of time, namely, more than two years.

18. ‘The attorneys for respondent, en December 5,

ig62, received from the attorneys for the defendant, pho-

tostatic copies ot official records indicating. (1). that the

defendant, while still’a resident of Vero Beach, Indian

River County, Flerida, died in Portland, New York, on

September tt, 1g60; (2) one Evva Gertrude King was

appointed administratrix of the defendant's estate by the

"County Judge's Court in and for Indian River County,

Florida, administered the estate, and filed.a petition for

-

‘2

rs

tinal discharge and final returns which were approved by

the County Judge on April 20, 1962.

1g. On December 7, 1962. the respondent filed.a

motion with the District Court suggesting the death of

the defendant Anderson J. King aad requesting that his

administratrix. Evva Gertrude King, be substituted as’

defendant. Notice of the motion and hearing was served

on Evva Gertrude King; Administratrix of the-estatesof |

Anderson J. King, in Florida by a United States Marshal.

29. On January 31, 1963. after a hearing, at which

Evva Gertrude King: was. represented. by Vir. Willis

Smith, Jr., of Smith, Leach, Andersin and Dorsett, Judge

Prever ‘signed an order reciting that Evva Gertrude King

was administratriy of the estate of Anderson im King, and

making her defendant in the place of Anderson J. ‘King.

(Appellant's Aprendix p. 66). Tn tais order, Judge

Prever, ai the re: juest of counsel tor the defendant, stated

his apinion that the ‘order involved a controlling question

of law within the meaning of 28 U.S.C. Sec. 12g2 (Db). s

that an immediate appeal might materially advance she

ultimate termination of. the livegation.

21. Subsequently, counsel for the petitioner decided

not to ihe an appeal prior to the trial of the case on the

merits, and on March. 7. 1963, Judge Prever, atthe re-

quest of counsel for the | P Sclitioner, entered an order recit-

ing that Evva Gertrude King. administratriy of the estate

of "Anderson J. Ring. deceased. had elected not to appeal

under the order and certification of January 31, 1963, but

desired to preserve any rights the ‘petitioner might’ have’

to object to the Court's ruling that Iewva- Gertrude King,

administratrix of thé estate of Anderson J. King be sub-°

stituted asa party defendant in place of Anderson J. King.

for the reasons set out in the brief filed by the defen-

dant in oppesition to said motion fer substitution of de-

fendant Liva Gertrude King, and dissolving the certifica-

tion frappeal without prejudice i the event that the de

fendant desired to raise thr same question if an appeal on

a

6 .

the merits ultimately became necessary. ( Appellee’s Ap-»

pendix, p: 15A). The defendant's brief in opposition to’ >

the motion for substitution of the original defendant’ sad-

ministratrix did not set out, as a reason for opposition to

the motion, any claim or argument that Evva Gertrude |

King, administratrix of the estate of Anderson J. King,

deceased, because of her seca se had no capacity ts

represent the defendant in thts action

22.. On July 18, 1963, there was filed with the Clerk

of the United States District Court for Eastern North

Carolina a Stipulation of Fact wherein it was stipulated

that the tractor-trailer which was owned by Anderson J.

King, and which was involved in the accident out of

which this case arose, was-damaged in the amount of #1.-

427.64 as a result of said collision. It was signed for-the

defendant, Evva Gertrude King, administratrix of the

estate of Anderson J. King, deceased, by Henry A. Mit-

chell, Jr. and by counsel for the plaintiff.

23. On the morning of October 7, 1963, just prior to

the beginning of the trial on the merits, Mr. Willis Smith,

Jr.. attorney for the defendant. called the plaintiff's at-

torneys into Judge Bell’s chambers and ‘for the first time

orally raised the question of whether the actign could pro-

ceed against Mrs. King as the original defendant's admin-

istratrix, when she had been discharged as administratrix,

no re-appointment had been made, and the estate had not

been reopened. Judge Bell refused to dismiss the action

for this reason, and.after trial by the Court enttred judg-

‘ment for the plaintiff in the amount of $24.750.00.

24: ‘The petitioner, Evva Gertrude King, was present

in the courtroom of the United States District Court for -

‘the Eastern District of North Carolina on October 7

1963, when this ‘action was tried and. participaied in the

trial by sitting with her. counsel.

7

. ARGUMENT

THE DECISFON -OF THE COURT OF: AP-

PEALS FOR THE FOURTH CIRCUIT HOLD-

ING THAT THE PETITIONER WAS ESTOP-

PED TO ASSERT THE- TWO-YEAR LIMITA-

- TION OF RULE 25, FEDERAL RULE SOFC IVIL

PROCEDURE WAS PROPER.

The Court of: Noeesi for the Fourth Circuit in af-

firming the decision, of ‘the District Court that the peti-

tioner, was estopped to assert the two-vear limitation of

Federal Rule of Civil Procedure 25 (a) (1) said the-

case at the bar was on all fours with Jacias ov. Waterson,

S274 F. 2d gr (2d Cir. 1959), certiorari dented, 362 US.>

\ gs, 80 Sup. Ct. 860, 4 Ls Ed. 2d 867 (1960). | .

As will appear from the, chronology of events in the:

case at bar, printed as part of the respondent's statement‘

of facts, the original defendant, Anderson J. King, died

of natural causes after this suit was filed, and for a long

period of time the fact of his death was unknown to the

attorneys on both sides of the litigation. ‘The action was

- commenced in state court on December 4, 1950, and was

removed on ‘December 22, 1959. On September 11, 1960,

the original defendant, Anderson J. King, died in New

York State of natural causes: On December 29, 1960, his

attorneys gave notice of the taking ef a deposition in Flor-

ida on January 1, 1961, which was in fact taken on that

date. On-December +9. 1961, his attorneys file! continuing

interrogatories under Federal Rule 23, which were an-

swered in part and objected to in part by the plaintiff on

December 28, 1961. A- pre-trial conference was held on

September 18, 1962, at which the original défendant’s at-

tornevs appeared and represtnted him as if he were alive,

os among other things that they proposed to establish

ertain facts by the testimony of the defendant himself,

who by this time had been dead for more than. two + ears.

On September 21, 1962. the respondent filed interroga-

8

tories addressed to the original defendant; and on October.

_3,, 1962, the original defendant's attorneys mailed the at- .

torneys for the respondent a stipulation extending time to

answer or object to the interrogatories, stating among_

other things that they needed time to get in contact with

their client. At.this time their client had been dead for

two years and twenty-two days. On November 6, 1962,

the attorneys for the original defendant informed the at-

-torneys for the respondent,. for the first time, that the

original defendant was dead, and it was only on November

27, 1962, that the respondent's attorneys learned for the

first time, through the attorneys for the¢defendant, that

the original defendant had in fact been dead for a con-

siderable period of time, namely, more than two years.

On December 7, 1962, the respondent filed a motion for

the substitution of the administratrix of the deceased de-

fendant, and notice of the motion and hearing thereon was

served upon her personally in Florida by United States

‘Marshal. On January 31, 1963, after a hearing at which

_ She was represented by her present attorney, Judge Preyer

signed an order reciting that she was administratfix and

making her defendant in place of the original

Anderson J. King, on the authority of Jovine 2) Waterss

274 F. 2d 41 (2d Cir. 1959). © ‘.

Judge Preyer and the Court a Agpeais Were Curreet

in their conclusion that this case comes squarely within

the rule uf Jovino v. Waterson. In Ivvino, as in the case at

bar, the ‘defendant's atturneys. took steps after -his death

which would have been appropriate only had he still been

alive, and which estopped the defendant's attorneys fram

taking advantage, under.the then terminology of. Federal

Rule of Civil Procedure 25, of the plaintiff's failure to .

substitute the defendant's personal representative within

two years of the defendant’s.death. In Toving, the action

was-begun in March, i955, ina State Court in New York.

The defendant removed to the District Court. In April,

1955, the defendant died intestate, with the plaintiff's at-

turneys remaining ignorant of that fact. In Mav, 1955,

9

plaintiff's attorneys served a-complaint on the attorney

who appeared. for the defendant, who accepted service

and served an answer, and. who in 1956, examined the

plaintiff before trial and participated in pre-trial confer-.

efices in the District. Court, without making mention of

defendant's death. When the plaintiff's attorneys learned

in the spring of 958 that the original defendant had been

dead for over two’ vears, they promptly took. steps ‘to sub-

stitute an administratrix of the original defendant in his

_stead. On appeal, the District Court was held to have

acted correctly in allowing this substitution even though

it was made more than two years after the originat«kefen-

dant’s death and even though a literal reading of the then

language of Federal Rule of Civil Procedure 25 would

not have allowed the substitution. ig

‘In an exhaustive.opinion which sets forth in depth the

"history of the former version of Federal Rule of Civil

— Procedure 25 and various other applicable provisions of

Federal law, and analyzes the cases construing them, a

three-judge panel of the Court“6f~Appeals for the 2nd

Circuit held unanimously that undef these circumstances

the defendant's attorneys.were estopped from taking ad-

vantage of the strict time limitation in Federal Rule 25.

The holding in this regard is well summarized in the

language of the Court at 274. F. 2d 51: oo |

“We need not go so far as to hold that an attorney

appearing in the Courts of this Circuit is under a duty | |

to keep himself and his adversary informed of his con-

- tinued authority at all times. We do hold that an at-

‘ torney so appearing must assure himself of the conginu-

ed existence of his client before he takes aflirmative

steps in the client's behalf ; that, in.-the absence of knowl.

edge to the contrary, his adversary may properly assume”

‘the has done this; that a client who authorizes ancate-——~..

torney to represent him has impliedly so infrméd: the

adverse party; and that no advantage may be-taken by

the client's personal representative of the attorney's

failure to ascertain the fact of the client's death.”

1O

If there -be any distinction between the case at bar and

lovine, it.is that the case at bar presents a stronger set of

facts fur reaching the same conclusion than did Jovine,

Not only did. thé petitioner's attorneys in the case at bar

take more steps in the period after their clrent’s death.

than was the case in Jovine, they also, approximately two

vears after their client's death, informed respondent's at-

turneys and the Court at a pre-trial conference that they

intended to prove certain facts by the testimony of the

defendant, thereby directly leading respondent's attorneys

to believe that the defendant stil! existed.

The petitioner seems to rely almust.completely on .dn-

_derson v, Yungkau, 329 U.S. 482, 67 Sup. Ct. 42, gt L.

Ed. 436 (1947). The Court of Appeals in Jovine- did nut

sidestep Anderson v. Yungkau, but dealt with it directly

and decided it had no application to the:state of facts in

Tuvine As the Court of Appeals said in [evine, at 274 F.

2d: <0:

“In Anderson, the Supreme Court wag, concerned

with excusable neglect, not with estoppel.”

By this petition, petitioner is secking a writ ot « ertiorart

on almost identical facts as in fering where a Writ of

certivrart was denied and this with reference to a prob-

rem which has no future significance because of the 1063

\mendment to Federal Rule of Civil Procedure 25,

which now allows substitution within ninety days of notice

of the death of a party, regardless of how long the parts

has been dead, In Rice v. Steux City “lemorial Park

Cemetery, 749 US. 70,75 Sup. Cr 614. 99 L. Ed. X97

(1gssd.a writof certisrart had previoush been granted,

Upon learning that a statutory change had rendered the

case a matter of concern only between the partics, the writ

ot certicrart was dismissed by the Court. Justice Frank

furter speaking tor the majority said at 4 US. 7a. 99

LL. Ed. go4, _

“Tf it be suggested that as much effort and time as- ,

. we have given to the consideration of the alleged con-

flict would have enabled us to dispose of the case before

us on the merits, the answer is that it is very important

that we be consistent in not granting the writ of certi-

crari except in cases invely ing principles, the settlement

of which is of importance to the public as-distinguished

from that of the parties, and in cases where there is a

real and embarrassing conflict of opinion and authority

between the Circuit Courts of Appeal.” —

Under these circumstances, it is difficult ta see’ What

aseful purpose could be served by denying the respondent”

her dav in court with respect to a claim which has already

been found by the. District Court and the-Court of Ap-

reals to be meritorious.

‘None of the Distsict Court and Courts of Appeals

‘ecisions ciied by the petitioner on Page 12-of her brief

ore apposite to the case at bar. In Je theimerv. MeIntee,

79 F.2d 79 (7th Cir. 1950), and, Fleming v. Sebastiani,

4: F. 2d str (oth Cir. 1947), we are not told what, if

anything, transpired between the death of the party in

question and the expiration of two vears from that time

Further, both cases were decided well before [ncing ¢.

[Waterson and it is impossible. to sav.what the attitude of:

- respective courts would have been had they been call

{upon to decide the legal implications of the Inving fact

sitardon. Starnes v. Penn. R. Co., 26 F.R.D. 625 (ED,

re 7 ), specifically cites [ocine and does not criticize

iton its fact situation, but savs, at 26 F.R.D. 629:

“In the case at bar, there is’nothing in the Conduct

of the defenaant from which can be fashioned a waiver

of the limjtation or an estoppel to invoke the rule.”

Such, too, is the situation in Zdanok v. Glidden Cis.,

28 F.R.D. 346 (S.DO N.Y. 1961). wherein the District

Corer quotes Jocing without criticism and states, at 26

F.R.D. 347: chet =

“There are ne circumstances here which would give

rise to waiver and estoppel as against these defendants.”

52

In Conley v. Gibson, 29 F.R.D. 519 (S.D. Tex. 19615.

there are no factors which could give rise to estoppel. as in

lov ing OF the case at bar !

THE DECISION OF THE COURT OF AP.

PEALS FOR THE FOURTH CIRCUIT THAT

THE PETITIONER BY FAILING TO ORJECT

TO HER SUBSTITUTION’ ON THE GROUND

THAT SHE HAD BEEN. RELIEVED OF HER

OFFICIAL STATUS AS AN ADMINISTRATRIN

UNTIL THE,DAY OF TRIAL WAIVED ANY

POSSIBLE COMPLAINT ON THAT GROUND

WAS PROPER.

The petitioner argues in her brief that she could not

properly be substituted, as administratrix of the deceased

original defendant, because at the time of the substitution

an order had been entered by the Florida Probate Court

discharging her as administratriyx. Upon examination of

the proceedings in this case and the applicable law. it will

be seen that this point isnot well taken

True. the defendant administratrix in the case at bar

War not formally reappointed. The reason was that the

defendant never, prior to the vers day of the trial on the

merits, objected to her substitution on the grounds that

she was no longer administratriv: an examination of, the

— record wills that the objection made was.that her re-

appointment, coming more than two vears after the death

of the onginal detendant. was simply te) late under the

pryvisions of Federal Rule of Civil Procedure 25) In

deed, Judge Prever. in his order of January 31. 1963.

recited that “Evva Gertrude King is administratriv of the

estate of Anderson | King deceased. and may properly ©

be substituted as defendant in his stead ~ (Appellant's

Appendis, 66, 67)

As a pert ot this order, the petitioner obtained Judge

Preyer’s leaye to appeal the question of the substitution

immediately under the provisions of the 1gsk Amend.

a

ment to the Interlocutory Appeals Act, 28 U.S.C. Sec.

‘:2g2 (b). Subsequently, Judge Prever dissolved this or-

der at the request of the petitioner and allowed the peti-

tioner to reserve the right to appeal this point for the

vrounds set forth in a brief filed by the petitioner. (Ap-

pellee’s Appendix p. 15A). The brief referred to, which

the petitioner did not bring up as part of the record, was

addressed almost exclusively to the question of whether

the petitioner could be substituted more than two yvearg

atter the original defendant's death, only obliquely re-

terred to the fact that the present petitioner had been dis-.

charged as administratriy and that to substitute her as de-

ten dant in the case would not be consistent with the or-

derly administration of estates, and in ne respect raised

the paynt that she might be an improper party because of

pure lack of legal capacity, having been dyscharged. to

represent and bind the estate of the detendant in this ac-

ten

Thereafter: a period of several thonths elapsed. and it

was only on the mourning of the dav of the trial oo the

merits. betere Judge Bell that the petitioner's attornes

cailedethe attornesé for the respondent inte Judge Bells |

chambers, raised the question whether the petitione, ad

mtistratriy was properly in the case rasmuch as she had

heen discharged as admunistratriy, and asked that the ac-

ton be dismissed for that reason. This conference in Judge

Bell's chambers appeam nowhere in the record. and the

retitioners atternes made ne tormal written or oral me.

ton which appears in the record ter dismissal of the case

nthe spectitc ground thot the petrtroner had no gapacits

te represent the estate of the orginal detendant: However.

n fairness te the petitioner, the respondent felt it neces

ary at this porot inthe bret t) brag the fact of the occur

Jace of this conference to the Court + attention

Phe onis formal motion made by the petitioner ter

4esmissal of the Case. on the grtnund that the petitioner had

been discharged as admuinietrateis and could act properly

he in the case; is the petitioners motion tor mveluntars

Jy

dismissal under Rule 41 (b), wena at the end of the trial

on the merits. ’

The fact is that the petitioner's attorney never made it

clear to the trial court whether he represented the peti-

tioner in her individual or representative capacity, or in-

deed whether he represented her at all. He appeared and:

represented her at the hearing on the original motion to

substitute her as defendant. On the other hand, at the

trial, ina colloquy with Mr. Manning and Judge Bell, he:

in effect refused to say whether be represented her at all

and if so, in what capacity; this occurred after he had par-

ticipated in the trial, ostensibly in-the role of her attorney

(Appellee’s Appendia, p. 13A).-His failure even on ap-,

peal to take an unequivocal stand on this point is indicated

by his filing a notice of appeal, and furnishing appeal and

SU} versedeas bonds, in the petitioner's name inusvidually,

and aet as administratrix —an omission which the ‘re-

spondent’s attorneys requested that he clarify, which re-

“— led te the writing of a letter to the Clerk of the Court

f Appeals for the Fourth Cirecit asking that language

a eat the petitioner's. wepresentative capacity be add-

ed atter her namc-in the documents which had been file’.

The re spondent’s position on this entire pointis simply

that the petitioner's attorney, by his various actions and

failures to act, has effectively waived this objection. He

‘made no effort to appeal from those portions of Judge

Prever’s substitution order which recited that the defen.

fant was administratrix of the estate of the criginal defen-

dant. He sigred a stipulation of fact filed July 18, 1963.

concerning the amount ‘of damages to the tractor-trailer

owned bs the original detendant which indicated petition-

er Was going to pursue the counterclaim posed by the”

original defendant. Hé did not raise until the very day

of trial the question, of whether her discharge resulted in

ea lack of capacity to represent the estate of the original

defendant. At the trial, when specifically questioned by

the trial judge as to whom he represénte |, he refused. to

say. (Appellees Appendix, p. 3A). In appealing the

“case, he appealed in the name ‘of the present petitioner as

an individual, in spite of the fact that she as an individual |

was never made a party to thé case.

It is respectfully submitted that w hat the petitioner has

done here brings her squarely within the rule enunciated

in Bush «. Remington Rand, 213 F. 2d 456 (2d Cir. 1954).

There, one of the plaintiffs: died-in 1945. Her estate was

settled and distributed in 1947, hearings on the merits be-

- fore a special master were begun i In 1949, and no attempt

was made by the defendant to raise the issue of failure to

substitute the personal representative of the deceased

plaintiff until after the completion of those hearings. On

this state of facts, the Court of Appeals for the Second |

Circuit said, at 213 F. 2d 464:

“Since the personal representative had not been

made a party, dismissal under Rule 25 (a) would ordi-

narily follow, but he (the District Judge) found that

the defendant by its long delay in raising the issue, had

waived its right to object.and was estopped from in-

voking the rule. Phus, pursuant to Federal BRule.21,

which permits the District Court to add'or drop parties

at any stage of the proceeding on such terms as are just,

he allowed the daughter Isabel D. Bush, Administra-

trix d.b.n.-c.ta. of ‘the estate of Birney Dysart under

Probate Court decree of August 16, 1949, to be added

as party piaintiff in the first action,

“We can see no error in this decision. The deten-

dant knew of Mrs. Dysart’s death as.early as 1946, and

if objection had been made at least prior to the hearings

in 1949, those proceedi gs would have been greatly

simplified and much time and expense would have been

— saved. Having stood by while the plaintiffs expended

money and effort in bringing the case to judgment, the

¢efendant should no longer be allowed: to object. Vhe

d gab” She mn) disputing this decision, relies on cnder-

Yungkau, 329 U S. 482. 67 Sup. Ct. 428, o4 L. Ed

a gohan ,

1 ‘ «

16

However, we do not think the Yunykau case is con-

trolling here where the issue is not the discretion of the

Trial Court but \ waiver by.the parties.”

The petitioner's attorney long knew that the petition

er had been discharged as administratria of the original

defendant in Florida. The order of discharge, which the

petitioner prints at Page 24 of her Appellant’ s Appendia,

- Was indeed procured by her attorney and furnished by

him to the attorneys for the respondent prior to the time

when they made their motion to substitute the personal

representative of the deceased defendant. Yet the petition:

ers atterney waited until the morning of the trialon the

merits to make the contention that this disch: ine resulted

Ina Noncapacity of the petitioner administratris to repre

sent the original defendant, and made no forma! motion

covering this potnt until he moved tor involuntary dis

bara atthe end of the trial on the merits. Under the Rule

i Bush 7. Remington Rand, this appears te be a clear

waiver of the right. to raise this point,

Pertinent decisions on this issue are. as might well be

expected, rare. In addition to the Bush case. the respon

dent’s attorneys have been able to find three other cases

which: indicate that the general law in the t aited: Atates

Is that questions wath : espieet to Capacity to suc or be sued

constitute matters which may be waived. In Cheelers ¢

Burke's Adm... io La 429: (1841), where the defendant

led | an answer atter a det vult judginent avidinst her and

tsserted in the answer that she was net the deceased ad

ee IE tewWas beld error to set the juigme nt aside,

on-the ground that she hac previously admitted the ca

pacity in which she was sued. lin Wayland «. Porterfield’s.

Eexec., S8.Ky. 638 CrSsg). Where the defendant had enter

eda yies of paviment in a suitor contract, it w as held tha.

this estopped him to controvert the tact that the plamnuft

was the executor of the deceased party whom he’ purport

ed to represent. iy inePerguson v. larder, 141 Mise.

460, 252 NYS. 783 (to3t). it was held thar the filing ot

an answer Ww es shiection that a foreign administrate:

17

_ had-no capacity to sue because he had not obtained ancil-.

lary letters. ~ a

The petitioner originally had the opportunity to dis-

pose of this question by interlocutory appeal, Which would

have saved the time of all concerned. She elected not to

pursue this course, and in preserving her right to appeal -

trom the ultimate decision on the merits, restricted her-

ni ty appealing on the grounds that substitution of parties

‘ame too late. She then allowed months to elapse befcte

the irial on thy meiits, without raising the question that

she had no capacity to be a detendant in the case, and first

raised the point informally atthe beginning of the trial,

rais.ng the point formally onls by general motion for in-

voluntary dismissal at the end of the trial on the merits. It

's respectfully submitted that there has,bven a full and ef-

fective waiver of the right to complain in this Court about

this-aspect of the case Had the point beea raised: at ans

reasonable time prior to trial on the merits the respondent

could, under the applicable Florida statutes, have had the

petitioner or someone else. reappointed as a Imttistsatrin.

i he untairness of making this demand on the véry dav of

the trial cy the merits was apparent to the Court of Ap-

pew stor the Fourth Circuit

Ehat petitioner relies heavily upon Malicnee ©. Fahey,

200 BF od gth (oth Cir. 19g2), that ouly the legal repre-

sentative of a party may be substituted under Rule 25 (a)

(1). However, an examination ot the Walloace case re

veals itis notin point with thisdecisiot. In VMallonec, the

plaintft atrempted to substitute uncer Rule 2s 6a) 01)

the successors mn office of the deceased. The Court said

that Rule 2s 6d) provides tor the substitution Of successors

mn office’

The petitioner turther raises the juestion of jyrisdic

teavot the District Court over her person. Wher this ac

tion was tried ap the District Court the pettioner, nvva

foertrude. NINE was present. To Pulley oo. Pulley, 255

WA g2. -Skoord 876, Cig6ti. the Nerth Carolina

18 | oF

Supreme Court laid down the following general rules

concerning jurisdiction of the person: _

“Jurisdiction-of the subject matter cannot be con-

ferred upon a court by, or be based op, the estoppel of |

a party to deny that it exists. As to other objections to

jurisdiction, there may be an estoppel, as in the case of

objections to the ‘manner in which, or the steps by

_ Which, the court obtained jurisdiction, or to the venue.

“One who invokes or voluntarily submits to the ex-

ercise by a court of its jurisdiction upon a matter of

Which it has power to take.cognizance is estopped from

subsequently objecting thereto.

“An absolute want of ‘jurisdiction over the subject

matter may be taken advantage of at anv stage of the

proceedings, even after judgment. However, ‘an objec- -

tion to jurisdiction based on any ground other than lack.

of jurisdiction of thé subject matter. such as lack of

jurisdiction of the person or i@regularity in the method

by which jurisdiction of the particular case was obtain-

ed, is usually waived by failure to raise the objection at

the first opportunity, or in due or seasonable. time, or

within the time prescribed by statute’.”

“This action being between a citizen of North Carolina

and a citizen of. Florida for,an amount in excess of $10,-

_ 000.00, there is*ne question of the District Court having

jurisdiction of the subject matter. The petitioner by he.

failure to ‘object to her substitution until. the day of the

trial and by her appearance and Participation in the trial

of this action clearly waived any irregularities as to Juris-

diction of her person. ° oe :

The Court of Appeals for the Fourth Circuit correct:

Iv decided the applicable Taw in this case. The petitioner

filed on July 8, 1964, a Petition for Rehearing concerning

the same points raised in the present petition. The Court

of Appeals denied the Petition for Rehearing on Julv 16,

1Q64. sis ;

.

1y

CONCLUSION

The respondent submits that this petition presents no

_ special and important reasons for a review on writ of |

certiorari and that this petition should ve deniéd. .

| Respectfully,

Howard JE. Manning of

MANNING, FULTON & SKINNER

600 Capital Chib Building |

Raleigh, orth Carolina.

a

Joseph C. — Jr. of

YOUNG, MOORE & Hi-NDERSON

Insurance Building *

Raléigh, North, Carolina

Counsel for Respe néent