Summary
The court considers a motion to set aside an order dismissing a bill after learning that the defendant died before the order was entered. It holds that the order was irregularly entered but permits the deceased defendant's administrators to be substituted as parties under the Judiciary Act of 1789 and allows the case to proceed without continuance.
Court
U.S. Circuit Court for New York
Writing for the Court
Thompson
Jurisdiction
New York
Decision date
September 15, 1825
Docket number
5,834
Procedural posture
Motion to set aside an order dismissing the complainant's bill with costs on the ground that the defendant died before the order was entered.
Precedential value
published
Parties
Griswold v. Hill
Disposition
other
Topics
civil proceduredefault judgmentsubject matter jurisdiction
Practice areas
civil procedure
Questions Presented
- Whether the court may enter a judgment as of a date antecedent to the death of a party who dies before the entry of judgment.
- Whether the executor or administrator of a deceased party may be made a party to the suit without a scire facias and proceed without a continuance, while the opposite party is not entitled to a continuance.
Holdings
- The court declined to enter the order retroactively; it will not set aside the dismissal order on that basis.
- The administrators are ordered to be made parties and may proceed without delay; no continuance is granted to the opposite party.
Key quotations
“The 31st section of the judiciary act of 1789 [1 Stat. 90] declares, “that where any suit shall be depending in any court of the United States, and either of the parties shall die before final judgment, the executor or administrator of such deceased party, if the cause of action survived, shall have full power to prosecute or defend any such suit or action.”” (at 1)
Factual background
The defendant, Samuel Hill, died on the first day of the term before the court entered an order dismissing Daniel S. Griswold's bill with costs. The order had been taken ex parte after Griswold indicated he would not pursue the case further.
Court Document
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