# Respondent Brief in Opposition to Petition for Writ of Certiorari — James v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0146%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondent Brief in Opposition to Petition for Writ of Certiorari - **Published:** January 1, 1964 - **Citation:** 379 U.S. 932 ## Text 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 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0146%3A3. Public record. Not legal advice.