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BOWLES v. MONTGOMERY

June 3, 1946

BOWLES, Adm'r, OPA,
v.
MONTGOMERY et al.



The opinion of the court was delivered by: GOURLEY

In this case the Office of Price Administration, on February 2, 1945, filed a complaint against Charles H. Montgomery and Charles B. Montgomery, individually, and trading as Montgomery Builders Supply, under Section 205(e) of the Emergency Price Control Act of 1942 as amended. Section 205(a) provides for application for an injunction and Section 205(e) provides for the institution of an action for damages, 50 U.S.C.A.Appendix, § 925.

Charles H. Montgomery, one of the above named defendants, died intestate on or about April 28, 1945. Letters of Administration upon the estate of the said Charles H. Montgomery were issued, on May 22, 1945, to Laura Blair Montgomery and Charles B. Montgomery, as administrators, by the Register of Wills of Mercer County, Pennsylvania.

 Subsequent to the appointment of administrators of the estate of Charles H. Montgomery, the Administrator of the Office of Price Administration, through its legal counsel, filed a motion with the Court for leave to substitute as party defendants Laura Blair Montgomery and Charles B. Montgomery, administrators of the estate of Charles H. Montgomery, and to this motion counsel for the estate has filed its objection.

 The question, therefore, before the Court for consideration is -- Does an action filed by the Administrator under the provisions of Sections 205(a) and 205(e) of the Emergency Price Control Act of 1942, as amended, 50 U.S.C.A.Appendix, § 925, survive after death of one of the party defendants?

 Rule 25(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A.following section 723c, provides as follows:

 '(1) If a party dies and the claim is not thereby extinguished, the court within 2 years after the death may order substitution of the proper parties If substitution is not so made, the action shall be dismissed as to the deceased party. The motion for substitution may be made by the successors or representatives of the deceased party or by any party and, together with the notice of hearing, shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of a summons, and may be served in any judicial district.

 '(2) In the event of the death of one or more of the plaintiffs or of one or more of the defendants in an action in which the right sought to be enforced survives only to the surviving plaintiffs or only against the surviving defendants, the action does not abate. The death shall be suggested upon the record and the action shall proceed in favor of or against the surviving parties.'

 Under the provisions of 28 U.S.C.A. § 778, it is provided as follows: 'When either of the parties, whether plaintiff or petitioner or defendant in any suit in any court of the United States, dies before final judgment, the executor or administrator of such deceased party may, in case the cause of action survives by law, prosecute or defend any such suit to final judgment. The defendant shall answer accordingly, and the court shall hear and determine the cause and render judgment for or against the executor or administrator, as the case may require.'

 It was furthermore held in the case of Schreiber v. Sharpless, 110 U.S. 76, 3 S. Ct. 423, 28 L. Ed. 65, that the personal representative of a deceased party to a suit cannot prosecute or defend a suit after his death, unless the cause of action, on account of which the suit is brought, is one that survives by law. At common law actions on penal statutes do not survive, and there is no Act of Congress which establishes any other rule in respect to actions on the penal statutes of the United States. So that if the cause of action dies with the person, the suit abates and cannot be revived.

 In connection with the claim for injunctive relief, since the actions sought to be enjoined are of a purely personal character, there is no question but what the right of action abates on the death of the individual concerned. The Administrator was well aware of this provision in law for in his motion to substitute the representatives of said estate as party defendants, such authority was not requested as far as injunctive relief was concerned.

 Counsel for the estate have commented on the right of substitution in their argument and in the preparation of their brief, as far as injunctive relief is concerned, and in order that no misunderstanding will exist, the Court hereby finds that the complaint filed against Charles H. Montgomery for injunctive relief under the provisions of Section 205(a) of the Emergency Price Control Act abated with death on April 28, 1945. 1 Corpus Juris, page 179, § 314; 1 Corpus Juris Secundum, Abatement and Revival, § 134, page 183.

 Although the right to injunctive relief abates with the death of the defendant where the relief claimed is personal in nature, it does not necessarily bar the right for a money claim unless said claim, as a matter of law, did not survive the death of the party defendant.

 From an exhaustive research of the law, it appears that the question involved has not been considered by the Appellate Court in this circuit or by the Supreme Court of the United States. However, it has been held that under provisions of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq., the liquidated damage provision is not penal in its nature but constitutes compensation for the retention of a workman's pay which might result in damages too obscure and difficult of proof ...


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