Ex parte Slater Public Administrator/Opinion of the Court

It now appears that the petition gives an inadmissible coloring to the matter in respect of which it seeks relief. We say this because the petition implies that the court did not consider but summarily rejected the public administrator's motion for a revivor in his name, whereas in fact the court heard oral argument on the motion, gave time for filing and received briefs thereon, and ultimately denied the motion for reasons given in a memorandum opinion. The petition makes no reference to this; neither does it mention the conflicting motion by the temporary administratrix which was heard at the same time, dealt with in the same memorandum opinion and granted by the same order that denied the public administrator's motion. These matters and the subsequent proceedings are all brought to our attention by the return, the accuracy of which is not questioned.

When the unwarranted coloring of the petition is put aside and what actually was done is considered in its true light, it is manifest that the situation is not one in which a writ of mandamus will lie.

Of course, the death of one of the parties having an interest in the fund operated to suspend the proceedings for its apportionment until some one legally capable of asserting and defending that interest should either come or be brought into the suit in the place of the deceased. Formerly such a substitution was effected through a bill of revivor or a bill of that nature (210 U.S. 526, 33 Sup. Ct. xxxiv, rule 56; Story's Equity Pleadings [9th Ed.] §§ 354, 356, 364); but the new equity rules provide that the court may, 'upon motion, order the suit to be revived by the substitution of the proper parties' (226 U.S. 661, 33 Sup. Ct. xxx, rule 45). Whether a particular applicant for substitution is the proper party is a question for the court to determine, just as is the question whether a particular suit is brought by or against the proper party. In either case the question is to be resolved by applying recognized legal and equitable principles to the facts in hand; in other words, by an exercise of the judicial function. If the suit be one which may be revived, as where the cause of action or claim in controversy survives, revivor in the name of the proper party is a matter of right, and, if it be denied, the denial may be reviewed and corrected upon appeal. Clarke v. Mathewson, 12 Pet. 164, 9 L. Ed. 1041; Terry v. Sharon, 131 U.S. 40, 46, 9 Sup. Ct 705, 33 L. Ed. 94; Credits Commutation Co. v. United States, 177 U.S. 311, 315-316, 20 Sup. Ct. 636, 44 L. Ed. 782; Mackaye v. Mallory, 79 Fed. 1, 2, 24 C. C. A. 420; Minot v. Mastin, 95 Fed. 734, 739, 37 C. C. A. 234; United States Trust Co. v. Chicago Terminal Co., 188 Fed. 292, 296, 110 C. C. A. 270; Western Union Telegraph Co. v. United States & Mexican Trust Co., 221 Fed. 545, 552, 137 C. C. A. 113.

When the two conflicting motions for revivor were presented it devolved upon the court to consider and decide which, if either, of the applicants was entitled to substitution. A full hearing was had and in regular course the court ruled that one applicant was and the other was not the proper party, and then entered an order reviving the suit accordingly. That was a judicial act done in the exercise of a jurisdiction conferred by law, and even if erroneous, was not void or open to collateral attack, but only subject to correction upon appeal.

'The accustomed office of a writ of mandamus, when directed to a judicial officer, is to compel an exercise of existing jurisdiction, but not to control his decision. It does not lie to compel a reversal of a decision, either interlocutory or final, made in the exercise of a lawful jurisdiction, especially where in regular course the decision may be reviewed upon a writ of error or an appeal.' Ex parte Roe, 234 U.S. 70, 73, 34 Sup. Ct. 722, 723 (58 L. Ed. 1217); In re Rice, 155 U.S. 396, 403, 15 Sup. Ct. 149, 39 L. Ed. 198; In re Key, 189 U.S. 84, 23 Sup. Ct. 624, 47 L. Ed. 720; Ex parte Park Square Automobile Station, 244 U.S. 412, 37 Sup. Ct. 732, 61 L. Ed. 1231.

Upon the present petition therefore we cannot consider the merits of the ruling upon the conflicting motions or the relative bearing of the subsequent proceedings whereby the widow in her individual right was substituted as the successor in interest and title of the deceased.

Rule discharged; petition dismissed.