Terry v. Sharon

This an appeal from the circuit court of the United States for the Northern district of California, and is now before us upon a motion on the part of the appellee to dismiss the appeal or to affirm the decree below. The appeal, which was the subject of this dual motion, is from an order of the circuit court reviving a suit in equity after a final decree in the case had been made, and after the death of William Sharon, the plaintiff in that suit. Sharon died after the case had been submitted to the court, but before its decision, and the court, finding in his favor, ordered the decree to be entered nunc pro tunc, as of the date of submission. The object of the original suit was to have a decree, declaring the nullity and invalidity of a certain instrument in writing purporting to be a declaration of marriage between the complainant, William Sharon, and Sarah Althea Hill, the defendant. The decree which was rendered in that case declared that said instrument was false, fabricated, forged, fraudulent, and utterly null and void, and directed that it be canceled and set aside. It further decreed that, upon 20 days' notice of the decree to the respondent, or to her solicitors, the instrument be delivered by the respondent to, and deposited with, the clerk of court to be indorsed 'Cancelled;' and the defendant was perpetually enjoined from alleging its genuineness or validity, or making any use of the same in evidence or otherwise to support any right or claim under it. The decree itself was rendered on November 23, 1885, and was entered as of September 29th of that year, the date of submission. On March 12, 1888, Frederick W. Sharon, as executor of William Sharon, deceased, filed his bill of revivor in the cause, setting forth the act of the death of William Sharon, and that he left a will, which was duly probated, and on which letters testamentary had issued to him as executor; that the so-called declaration of marriage had not been delivered for cancellation, as ordered by the decree; and that the plaintiff feared the defendant would claim and seek to enforce property rights as the wife of William Sharon, by virtue of said written declaration of marriage. The bill of revivor further stated that on January 7, 1885, the defendant Sarah Althea Hill had intermarried with David S. Terry, and he was accordingly made a defendant with her to the bill of revivor. It prayed, therefore, that the suit might be revived in his name as executor, and that the defendants be required to show cause why the original suit and proceedings should not stand revived against them. To this bill of revivor, the defendants interposed a demurrer, which stated, among other things, that the court had no jurisdiction of the subject-matter of the suit, and no jurisdiction to grant the relief prayed for in the bill, or any part thereof, and that the bill did not contain any matter of equity whereon the court could ground any decree or give to the plaintiff any relief against the defendants, or either of them. The circuit court entered an order overruling the demurrer, and reviving the suit in the name of Frederick W. Sharon, as executor of William Sharon, and against Sarah Althea Terry and David S. Terry, her husband, and ordering that the executor have the full benefit, rights, and protection of the decree, and full power to enforce the same against the defendants, and each of them, in all particulars. 36 Fed. Rep. 337. It is from this order that the present appeal is taken.

S. Shellabarger, and J. M. Wilson, for appellants.

H. E. Davis and S. M. Wilson, for appellee.

[Argument of Counsel from pages 42-45 intentionally omitted]

MILLER, J.