MR. JUSTICE McKENNA delivered the opinion of the court.
THIS is a petition for a writ of mandamus to the Judges of the Circuit Court of the United States for the Ninth Circuit and District of California, which substantially shows as follows:
The Moscow National Bank of Moscow, Idaho, was a corporation organized under the national banking laws of the United States, with its place of business at Moscow, Idaho.
The bank, becoming insolvent, was closed by order of the Comptroller of the Currency of the United States, and taken control of by that officer.
On January 3, 1898, he appointed petitioner receiver of the bank's assets.
On June 14, 1897, the Comptroller made an assessment of one hundred dollars on each share of the capital stock of the bank, and ordered the stockholders to pay the same on or before July 14, 1897. O. P. Overton and C. A. Hoffer were owners of one hundred shares, and by the assessment became indebted to petitioner in the sum of $10,000, with interest from June 14, 1897.
On March 28, 1898, petitioner commenced an action in that court against said Overton and Hoffer for the said sum of $10,000, and caused a summons to be issued, directed to them as defendants, and placed it in the hands of the marshal for service.
Service was made in the usual form by the marshal on Hoffer personally, in Santa Rosa, in said district.
As to Overton, the marshal made the following return on the 5th of April, 1898: "I hereby certify that I was unable to make personal service on O. P. Overton, as he was very sick, and was not permitted to see any one, under instructions of his physicians."
On April 13, 1898, O. P. Overton died without service having been made upon him.
He made a last will and testament, appointing John P. Overton executor thereof, which was duly probated, and letters testamentary were duly issued.
On March 15, 1899, these facts were brought to the notice of the Circuit Court, and petitioner moved for and obtained an order directing that a writ of scire facias issue to said John P. Overton, which concluded as follows: "You are hereby commanded within twenty days after the service upon you of this writ to appear and become a party to this suit, according to the provisions of section 955 of the Revised Statutes of the United States, or show cause why you should not, otherwise judgment may be taken against the estate of said deceased in like manner as if you had voluntarily made yourself a party."
The writ was duly served and a motion was noticed for April 17, 1899, for an order setting aside the scire facias "and the attempted service thereof."
The ground of the motion was that "Overton died before the
service upon him of any process, that no process was ever served upon him herein, and that this action was never pending against him; and upon such other grounds as to the court may seem proper."
The motion was granted, and the petitioner allowed an exception.
On June 12, 1899, upon the suggestion of the death of defendant O. P. Overton, the court made an order substituting John P. Overton as executor of the last will and testament of O. P. Overton, deceased, as defendant, and ordered an alias summons to issue to him as executor.
The summons was duly served, and on August 11, 1899, he by his attorneys, filed and served a notice of motion to set aside the order of substitution and quash the alias summons, on the ground "that said O. P. Overton died before the service upon him of any process herein; that said alleged alias summons is not in the form required by law, and upon such other grounds as to the court may seem proper."
The matter coming on to be heard on November 20, 1899, and having been submitted, it was granted on December 4, 1899, and petitioner was allowed an exception.
The petition for a writ of mandamus alleges that the ground upon which said court set aside the service of summons was that the action had abated by the death of O. P. Overton before the service of process upon him; and prays that a writ of mandamus be issued to the judges of the Circuit Court of the United States aforesaid to take jurisdiction and proceed against John P. Overton as executor as aforesaid.
A rule to show cause was granted. The return thereto by the learned Judge of the Circuit Court admits that the allegations of the petition as to the proceedings had in the Circuit Court are true, except that the court "has not refused to take jurisdiction of the action therein referred to, but only of the person of John P. Overton, executor of the last will and testament of O. P. Overton, the deceased defendant in said action." And the return alleged that the grounds ...