Welch v. Lynch

Mr. Chief Justice Shepard delivered the opinion of the Court: 1. The first error that has been assigned relates to the proceedings in the cases under rule 39 of the trial court, commonly called the stet rule. The contention is that, by the operation of that rule, the court lost jurisdiction to try the cases. The rule was devised to facilitate trials by relieving the calendar of cases the prosecution of which was not being pressed for any reason. The rule provides that in all cases on the trial calendar not otherwise disposed of by the end of the third term after issue joined (unless under special circumstances not occurring here) there shall be entered a stet, and they shall not be brought forward to succeeding terms except as hereafter directed. Section 2 provides that, if either party shall desire to try a case in which a stet has been entered, it shall be his duty to give fifteen days’ notice, before the commencement of another term, of his intention to press for trial, etc., and he shall have the right to insist upon trial as if the case were regularly on the calendar for that term; the court having the right to designate the order and time of calling the case, having reference to the other business of the term. Section 3 provides that stet cases shall be entered upon a stet calendar, and after the expiration of the third term after stet entered it shall be the duty of the clerk, without direction from the court, to make an entry dismissing the cause at plaintiff’s cost. Rule 39 was amended October 31, 1904, by providing that a case upon the trial calendar, regularly called at three terms, and not tried, shall be stricken therefrom; and a case so stricken therefrom shall not be restored except by leave of court upon motion in writing filed within one year; and if no such motion the cause shall at the end of the year be entered by the clerk as dismissed for want of prosecution. A case so restored, if not tried when called, shall be dismissed, unless otherwise ordered by the court. But one of the cases, as is shown in the preliminary statement, was entered as dismissed by the clerk under the rule; and this entry was promptly vacated as improperly entered. A general rule of court is, of course, — 136 — binding upon it. The trial court having promulgated rule 39, and being familiar with its ordinary interpretation and application, we are not prepared to say that, from the recitals of the record, it erred in restoring the dismissed case to the calendar, and ordering its trial. Nor was the order of the court vacating the order of dismissal entered by the clerk, in supposed compliance with rule 39, within the rule enounced in Karrick v. Wetmore, 25 App. D. C. 415, 205 U. S. 141, 51 L. ed. 745, 27 Sup. Ct. Rep. 434. 2. The next assignment of error in order is founded on the action of the court in permitting the revival of the second action, that had been brought by Mary A. Lynch, in the name of her husband, William T. Lynch, as sole plaintiff. Assuming that the heirs of John Patrick Whelan became vested with the title of the whole of the premises on the death of Catherine Whelan, Mary A. Lynch became entitled to the undivided one-third thereof, for the recovery of which she brought said action. As we have seen, she left eight children, to whom her estate descended, as she died intestate. It is contended by the appellee William T. Lynch, and not denied by the appellants, that, upon the death of Mary A. intestate, his initiate estate as tenant by the curtesy became consummate, which entitled him to claim the possession at her death, and to maintain an action therefor, to the exclusion of her heirs at law during his life. Frey v. Allen, 9 App. D. C. 400. By rule of the common law, all pending actions abate upon the death of the plaintiff, and the right to revive and. continue the same is a statutory creation. In our Code, by adaptation of the Maryland act of 1785, chap. 80, sec. 1, it is provided that no action shall abate by the death of a party (where it is one that can survive) ; and where the plaintiff dies “before judgment is given, the heir, devisee, executor, administrator, or other proper person to prosecute such action may appear and prosecute the same” etc. If the new plaintiff voluntarily appear, or be summoned before the suit shall abate, “all proceedings in the action had before the death of the plaintiff shall be considered as proceedings in the cause, and such other proceedings shall be had to bring the cause fairly to trial — 137 — as the court may deem proper.” Secs. 236, 237 [31 Stat. at L. 1227, 1228, chap. 854]. The surviving husband is not included in those authorized to revive and continue the action, who are those only upon whom, the estate of the plaintiff devolves at death. The right of the surviving husband to the possession of the premises, as tenant by the curtesy, was created by operation of law. It did not devolve upon him by the death of his wife, but Avas consummated thereby. He did not succeed to her right of possession, but, in consequence of her death intestate, he became entitled to a new and independent possession of his own. Whether the personal representatives or next of kin of Mary A. Lynch might have revived the action, in so far as it involved the recovery of the mesne profits to which she was entitled to the time of her death, is a question we are not called upon to consider, as no attempt was made to do so. We think it was error to permit the revival by the surviving husband, and its continuance on his own behalf. The suit of Mary A. Lynch abated, and was out of court; and a neAV action and summons on the part of the new plaintiff was essential. Wilson v. Garaghty, 70 Mo. 517, 519; Buck v. Goodrich, 33 Conn. 37, 41; Ryder v. Robinson, 2 Me. 127; St. John v. Croel, 10 How. Pr. 253; Barrett v. Birge, 50 Cal. 655; Barribeau v. Brant, 17 How. 43, 15 L. ed. 34; Green v. Watkins, 6 Wheat. 260, 262, 5 L. ed. 256, 257. The objection by the defendants to this substitution of plaintiffs was specific enough, we think; but it is unnecessary to discuss the point, as the error is apparent on the face of the record, and of a nature to compel notice. Macker v. Thomas, 7 Wheat. 530, 532, 5 L. ed. 515, 516. 3. Had the action brought by Mary A. Lynch been capable of reviAral by her husband, there would have been no error in the order consolidating the two cases for trial. They were of like nature, involving the same property and the same substantial questions of law and fact, and the defendants in each were the same. Under such conditions it is within the discretionary power of the trial court to consolidate cases for trial in order to avoid unnecessary expense and consumption of time. Rev. Stat. see. 921, U. S. Comp. Stat. 1901, p. 685; Mutual — 138 — L. Ins. Co. v. Hillmon, 145 U. S. 285, 293, 36 L. ed. 706, 709, 12 Sup. Ct. Rep. 909. But as the action of Mary A. Lynch abated at her death, and could not be revived and continued in the name of her surviving husband, as has been held, there was no foundation for the order of consolidation. There remained but one action that could be tried. 4. Several specifications of error relating to the entire deposition of Airy Ann Dover, and to specific parts of her depositions, as well as those of Mary Ann McGee and Mary Ann Lynch, will be considered under one head. These depositions were taken de bene esse. Two of the deponents died before trial, and Airy Ann Dover was too feeble to be produced at the trial. (1) The depositions of Airy Ann Dover were taken to be used in the two pending cases, and in an equity suit relating to the property, the nature of which does not appear. The objection was to the want of proper notice. The objection was not made on this ground until the depositions were offered in evidence. It appears also that defendants were represented by counsel when all of the depositions were taken, who cross-examined the witnesses at length. The objection to the depositions, as a whole, on this ground of want of proper notice, and for other informalities, came too late. Code, sec. 1058 [31 Stat. at L. 1354, chap. 854]. To this extent the Code but declares the ordinary rule of law in such cases. Howard v. Stillwell & B. Mfg. Co. 139 U. S. 199, 205, 35 L. ed. 147, 149, 11 Sup. Ct. Rep. 500. (2) Certain answers of two, at least, of these witnesses tended to show declarations of certain deceased children of John Patrick Whelan to the effect that both John Patrick and Nicholas had been stone masons, and worked in partnership on the Tiber creek canal and the foundations of the capitol; that John Patrick could neither read nor write, but Nicholas could; that Nicholas did the clerical work for John Patrick, who was a contractor, and took his papers and otherwise defrauded him; and that the heirs of John Patrick expected to come into their property again through inheritance from Catherine Ann Whelan, the only surviving child of Nicholas. The questions elicit — 139 — ing these answers, and the answers themselves, were objected to as hearsay when the depositions were taken, and noted therein. They were renewed specially when the depositions were offered in evidence. We find no warrant for the introduction of the evidence of these declarations in any of the established exceptions to the general rule excluding hearsay testimony. They had no relevancy or relation to the question of the pedigree of either of the persons named, and were neither necessary nor important to their identification. Queen v. Hepburn, 7 Cranch, 290, 295, 3 L. ed. 348, 349; Ellicott v. Pearl, 10 Pet. 412, 437, 9 L. ed. 475, 485; Sargent v. Lawrence, 16 Tex. Civ. App. 540, 544, 40 S. W. 1075. (3) It appears from the printed copy of the entire depositions, which has by agreement been ■submitted to us to be taken as part of the record, that a motion was made by the defendants to suppress so much of the “deposition of Mary Ann McGee as relates to the relationship of herself or any plaintiffs to Kitty Ann Whelan as purports to be, or to be based upon, statements made to her or in her presence by persons other than the defendants, because there is no evidence in this case of any relationship of the witness to Kitty Ann Whelan, or her father, Nicholas Whelan, other than the •statements of the witness based upon her own knowledge.” This objection was evidently based upon the rule established in this jurisdiction, that the declarations of the members of the family of one ancestor alone are inadmissible to show that another person whose estate they claim by descent was the brother of that ancestor; or, in other words, to make declarations admissible as evidence of the pedigree of an alleged collateral relation, in order to establish a claim to his estate by descent, there must first be offered some competent evidence, aliunde, of relationship between him and the declarants. Blackburn v. Crawford, 3 Wall. 175, 187, 18 L. ed. 186, 191; Fulkerson v. Holmes, 117 U. S. 389, 397, 29 L. ed. 915, 918, 6 Sup. Ct. Rep. 780; Jennings v. Webb, 8 App. D. C. 43, 56; and see also Wise v. Wynn, 59 Miss. 588, 593, 42 Am. Rep. 381. It will be remembered that no declaration on this point emanated from either John Patrick or Nicholas Whelan. The difficulty — 140 — with the appellants on this point is, however, that the foregoing-motion, which applied also to but one of the depositions, seems-never to have been brought to the attention of the court at anytime, as far as the record discloses. Nor was any such special, objection noted in any of the depositions, or made at the trial.. Whether such objections on the ground of incompetency and irrelevancy can be made on another trial, because not noted at the time the depositions were taken or within ten days thereafter, is a question that may become of importance. Notwithstanding, we do not feel called upon to determine it. In the-first place, the requisite evidence of the relationship of the declarants to Nicholas Whelan may be produced upon another trial. In the second place, it involves a point that has not been argued on either side as to the application of sec. 1058 of the-Code. Apparently, the generally established rule is that, while-formal objections to such depositions must be made within a reasonable time after their return, those for incompetency or irrelevancy may be made at the trial, as in the case of the examination of ordinary witnesses. 13 Cyc. Law & Proc. pp. 1018, 1020; 6 Enc. Pl. & Pr. pp. 591, 596. It is argued that this second rule has been changed by a provision of sec. 1058 of the Code, which reads as follows: “But if the attendance of the witness cannot be produced, then the said deposition shall be admissible in evidence, subject to such objections to the questions- and answers as were noted at the time of taking the deposition,, or within ten days after the return thereof, and would be valid were the witness personally present in court.” Assuming, but without expressly so deciding, that the argument is a sound one,, the question that has not been argued is this: As the depositions of the two important witnesses — Mary A. McGee and Mary A. Lynch — appear to have been taken and returned not later than July, 1900, are objections to any of their answers, on the ground of incompetency and irrelevancy, governed by the provision of the Code which did not take effect until January 1, 1902 ? See Code, sec. 1638 [31 Stat. at L. 1435, chap. 854]. 5. There was no error in excluding the conveyance made by — 141 — Nicholas "Whelan to trustees for the benefit of his daughter Catherine Ann, which was offered in evidence by the defendants to show that her title to the premises in controversy had been acquired by purchase, and not by descent. It is immaterial to •consider the effect of the conveyance, for if Catherine Ann took by purchase, nevertheless, upon her death without issue or brothers or sisters or their descendants, her estate passed to the descendants of the grandfather on the father’s side, which the plaintiffs claim to be, by another provision of the law of descents then in force. Md. act, chap. 45, sec. 2; D. C. Comp. Stat. p. 193. See Code. secs. 945, 950 [31 Stat. at L. 1342, 1343, chap. 854]. 6. Other assignments of error founded on the exclusion, when offered in evidence by the defendants, of certain instruments and court proceedings, will be considered together. These are fully described in the preliminary statement, as: (1) The will of Catherine Ann Whelan made in 1844, and the probate thereof in Maryland in 1894; (2) the proceedings in the administration of the estate of Nicholas Whelan in the probate court of Maryland at some date, shortly after his death, that is not given in the record; (3) the record of the proceedings in equity in the circuit court of Montgomery county, Maryland, in 1861, or 1868, showing the adjudication of the lunacy of Catherine Ann Whelan and the appointment of a guardian of her person and estate. None of the heirs of John Patrick Whelan was a party to any of the proceedings, and it is conceded that the will had no operation upon the premises in controversy. The contention is that because the plaintiffs made no appearance in any of these proceedings, and asserted no right, these were relevant circumstances from which it might be inferred that, at the times mentioned, none of the descendants of John Patrick Whelan claimed any relationship with Nicholas or Catherine Ann Whelan, or any interest in their estates. As it appears that the plaintiffs, if related to Nicholas Whelan, had no interest in the Maryland property or in the distribution of his personal estate; that they had no substantial interest which called upon them to interfere in the proceedings relating to the lunacy of — 142 — Catherine Ann; and that the premises in controversy were not. affected by ber will, — we think tbat tbe court committed no error in excluding tbe evidence as irrelevant. 7. Tbe paper in tbe bandwriting of the Attorney England,, found among bis papers after bis death and purporting to be-bis memorandum of a statement of Margaret Whelan, relating to tbe pedigree of ber father, John Patrick Whelan, was-properly excluded when offered in evidence by tbe defendants^ The memorandum was not signed by Margaret Whelan; nor was-there a particle of evidence tending to show that it bad been seen, much less approved, by ber. 8. Another group of errors tbat have been assigned relates (1) To tbe refusal of tbe court to instruct tbe jury to return a verdict for tbe defendants; (2) to tbe proceedings relating; to tbe return and amendment of tbe verdict; (3) to tbe entry of a single judgment in tbe two cases, and to errors in tbe form of tbat judgment. As tbe judgment will be reversed and a new trial ordered, we consider it unnecessary to pass upon tbe several questions arising hereunder. Tbe evidence on another trial, may be materially different, and if tbe plaintiffs, or any of them, should recover another judgment, the- errors complained of, if such they were, in respect of tbe entry of tbe verdict and judgment, will, in all probability, not occur again. Eor tbe errors tbat have been pointed out, tbe judgment will be reversed, with costs, and tbe cause remanded, with direction to set aside tbe verdict and grant a new trial. Reversed. A motion by tbe appellees for a rehearing was denied November 1, 1907.