Treasurer of Vermont v. Raymond , 16 Vt. 364 ( 1844 )

The opinion of the court was delivered by

Williams, Ch. J.

There are but two questions in this case, the decision of either of which in favor of the defendants is conclusive in the suit.

1. Whether the suit abated and became discontinued on the death of the prosecutor, and 2, if it did not so abate, but survived like other suits between party and party, had the county court any discretionary power to order it discontinued under the circumstances. For if they had this power, the exercise of it is not a subject of error.

The court are prepared at this time to decide the second question, which will render it unnecessary to decide the first.

If the action survives, it must be by virtue of the statute which provides that the executor or administrator may prosecute or defend any action which may have been commenced in the life time of the deceased; and it is claimed, on the part of those who appear in opposition to the defendants, that this suit does survive to the representatives of Mr. Barker, who first made application to the treasurer to have the bond put in suit. The treasurer has no interest whatever in the suit, nor can he prosecute it as trustee for the parties interested; and herein it differs from the suit of The Treasurer v. Phillips, 4 Mass. 68.

The statute creating the bank of Bennington, section 21, requires that the directors should give bonds to the treasurer of the state, and that, on the complaint of any one who has been injured, &c., it shall be the duty of the treasurer to cause the bond to be put in suit, on receiving security to indemnify the state against cost, and to certify to the court who is prosecutor; and the court may, on motion of the defendant, order the prosecutor to find security to indemnify the defendants for their costs, if he should fail to prosecute or recover thereon.

If we suppose, therefore, that this case can be brought within the 18th or 19th section of chapter 48 of the Revised Statutes, and that the deceased, Mr. Barker, is to be treated as plaintiff, wé think the court, before whom the suit was pending, might determine how long such suit should be continued to await the appointment of an administrator. The provision under our former statute, in cases where an executor or administrator had been appointed, was plain. The executor or administrator must have entered at the next term after his appointment, or have been cited in, in case the surviving party wished to compel him to become a party. Tyler v. Whitney, 8 Vt. 26. Wentworth v, Wentworth, 12 Vt. 244. But if no executor or administrator was appointed, the suit was to be continued of course, on the suggestion of the death of the party, until an administrator was appointed. Our present statute does not in terms require that the executor or administrator shall appear, or be cited in, at the next term after his appointment; and whether the decision would be the same as under the former statute, in this particular, is not before us. The provision, in case no executor or administrator is appointed, is similar to the former statute. To me it is very obvious that the legislature never contemplated that a living party should be held to appear in any suit, when jhe other party was dead, or that a suit should be continued on the docket, except in the case provided, when no executor or administrator was appointed. It may, then, be asked, how long a suit, where one of the original parties is dead, should be continued for the appointment of an administrator ? According to the construction contended for in this case, it must be continued an indefinite time, — that is, until an executor or administrator is appointed, if there ever should be one. It is certain that the'living party cannot compel or hasten the appointment of an administrator for his deceased opponent.

We apprehend that it is entirely and Completely within the discretion of the court, before whom any action is pending, to say how long a suit shall be continued to await the appointment of an administrator ; — and it is very apparent that it should be so. The deceased, whether plaintiff or defendant, may have resided out of the state and have no other interest here, the persons interested in his estate may have no desire further to prosecute or defend the suit, and therefore not be disposed to take out letters of administration; and the surviving party cannot take out such letters of administration without incurring an unnecessary, and perhaps undesired, trouble; and, further, it may be asked, what security could he have for cost, if he himself should become plaintiff or defendant, or both ? In the case before us, what assurance could the defendants have, that the representatives of Mr. Barker would ever prosecute? Or what security had the defendants that the representatives would ever give security, for costs ? Or what propriety would there be in keeping a surviving party under the necessity of attending from term to term to know whether any executor or administrator would ever appear to oppose him? — We apprehend, therefore, it was within the discretion of the county court, to decide how long this cause should remain on the docket after the death of the prosecutor, and it being so in their discretion, it is not the province of this court to substitute their own discretion for that of the county court.

Upon reference to the facts it appears to us that this discretion was not unduly or improperly exercised in the present case. The suit was commenced in February, 1842, returnable to June Term 1842. Barker was the prosecutor, and he died April 2,1842, more than two months before the session of the court. The will was approved in New York, June 27, 1842. No attempt to prove it here, or take out letters of administration, was made until Nov. 25, 1842, when it was presented to the probate office in the district of Bennington, and notice given for all persons to appear, &c., on the 17th of December, — a day after the sitting of the court in December. The legatees, or persons interested in the will,’ had ample opportunity from April to December to institute such proceedings in this state, as to have a legal representative of Barker appointed, if they were so disposed. The defendants had no security whatever for cost, their property was held in custody by virtue of the attachment, their debtors were sued as trustees in this writ, and the collection of their debts suspended. Mr. Spalding, the treasurer, was not a party ; — the original prosecutor, Barker, was deceased; — neither legatees, executors or administrators became parties to the suit, and the learned and able counsel, who have argued this case both here and at the county court, are not the attorneys of any party to the suit; — and of course the discontinuance must have been ordered without any other notice than was had in this case, as there was no party to be notified. The county coutt, at which I presided, thought it a proper course to exercise their discretion, and not continue the suit any farther, to see if any executor or administrator would be appointed, or ever farther pursue this suit. I have already observed that the reasons which influenced the county court to exercise their discretion cannot be re-examined here.

Whether the suit did in point of fact survive at all, after the death of Barker, we have not thought it our duty particularly to investigate, and of course it will be considered an open question, whenever a similar case occurs. My own opinion, however, remains unchanged, that it is a case unprovided for by any existing statute, and, being a casus omissus, cannot be helped by the court. The provisions of this statute in relation to the bonds of directors are different from all others. No security whatever is given to the defendants for cost, until the suit is entered in court, and the prosecutor, -in pursuance of an order of court gives security. The statute contemplates a living prosecutor at all times, upon whom the court can make order for costs, pleading, &c. It does not in terms provide for its surviving, and it appears to me, without some legisislative provision, without which no suit survives the death of a party, this suit was at an end, and could be no further prosecuted, when Barker deceased before the entry of the action.

The judgment of the county-court is affirmed, and there is yet no party of whom the defendants can recover their costs.