Suggestion of Death of a Respondent and Motion — Swanson v. Traer

-?

No. 149

In the |

Supreme Court of the United States

* ‘

| October Term, 1956 eiaieg? ‘\

RALPHL D. SWANSON, MARIE. A. SWANSON,

oe C. SHEAFF, ROY E. CRUMMER,

Petitioners, ,

" v. bce |

GLENN W. TRAER, et al., |

. Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

SUGGESTION OF DEATH OF A,

RESPONDENT AND MOTION .

FOR SUBSTITUTION

Petitioners, by their attorneys, hereby erent on the record,

on information and belief, that the respondent Bernard f. Fallon

died at the City of Chicago, Cook County, Illinois, on the 24th

day of December, 1956, and that B. J. Fallori, Jr., has.been duly

appointed by the Probate Court of Cook County, Illinois, in

file number 57-P-548, as the executor of the estate of the said

ue,

to

Bernard 4. Fallon, . deceased, and has duly qualified as =

+ executor, and ig presently duly qualified. and acting as . said *

executor.

‘Petitioners move, that an order: be ial in this Court pro-

viding that, uriless the aforesaid B. J. Fallon, Jr.,.as executor of

the estate of Bernard J. Fallon, deceased, shall become a party | __

to this action within a time to ‘be designated by the Court, then —

the petitioners shall be entitled to proceed as in ‘other. cases of

non- -appearance by a respondent, and that the judgmént of this

‘Court be made applicable to the said B. J. Fallon, Jr., as executor

of the estate of Bernard J. Fallon, deceased.

- The grounds for the said motion are: that relief is sought

in this action from the said respondent Bernard J: Fallon, de-

ceased; that this stockholders’ derivative suit is an equitable

-. action) Koster v. Lumberman’s Mutual Co., 330 US. 518; that, .

in equity, the death’ of a party results only in a. suspension of

the proceedings, rather than in a términation of the action,

Fiegenbaum v. McFarlane, 399 Ill. 367, Geiger v. Merle, 360 ll.

497, Warner v. Flack, 278 Ill. 303; that the Illinois Survival

Statute, Section 339 of the Probate Act of July 24, 1939, Ill. Rev.

Stat. 1955, Chapter 3, Section 494,- probably does not apply to

equitable actions, Aiken v. Peabody, 168 F. 2d 615 (C.A. 7th);

and that, should the said Illinois Survival Statute nevertheless

be held to apply to equitable actions, then the action for fraud

in the present case. survives ‘by virtue of the terms of the : statute:

“In addition ‘to the actions which survive by the common law,

_. the following also survive: actions of replevin, actions to

recover damages for an injury to the person (except slander _

and libel), actions to recover damages for an injury to real

or personal property or, for the detention or conversion of

poone property, actions _ against officers for misfeasance,

_ rd

yf 3.

malfeasance, or nonfeasance of themselves or their deputies,

actions for fraud or deceit, and actions provided: in Section —

14 of Article VI of ‘An Act relating ‘to alcoholic liquors’,

approved January 31, 1934, as amended. As amended by act .,

7 wr July 23, 191. 11951, p. 1680." aie added).

Respectfully viene,

AVERN B. SCOLNIK: |

Counsel of Record:

for Petitioners

PHILIP F. LA FOLLETTE

WILLIAM H BOWMAN

JAMES E. DOYLE |

-Counsel for Petitioners :

Q