
    LORETO GALLEGOS v. THE UNITED STATES AND THE NAVAJO INDIANS.
    [Indian depredations,
    5977.
    Decided December 7, 1903.]
    
      On the claimant's Motion.
    
    The petition is verified and filed by the attorney in ignorance of and shortly after the death of the claimant. After the expiration of the Jurisdictional period for bringing such suits the administrator comes in and moves to be substituted.
    I.The jurisdictional condition imposed by the Indian depredation act, 3d March, 1891 (26 Stat. L., 851, sec. 2), is that “all claims shall he presented to the court by pietition, as hereinafter provided, within three years.”
    
    II.A claim “presented to the court by petition” within the jurisdictional period by the attorney in ignorance of the death of the party is not a cause pending, and can not be used as a basis for reviving the case in the name of the administrator after the expiration of the jurisdictional period. Nolt, Ch. J., dissenting.
    III.The common-law rule that a suit begun in the name of a dead man is a nullity is applicable to cases under the Indian depredation act. Nolt, Ch. J., dissenting.
    
      The Reporters’ statement of the case:
    The facts of the case and the grounds of the claimant’s motion appear in the opinion of the court.
    
      Mr. W. II. Robeson for the motion:
    Perhaps nothing’ is better settled in the law of pleading than that questions going to the jurisdiction of the court, the disability of the parties plaintiff or defendant, or to the abatement of the writ or declaration must be availed of bj^ pleading in abatement.
    The suggestion that the claimant was dead at the date of the filing of his petition is a suggestion of the disability of the plaintiff and is therefore the subject of a plea in abatement.
    The rules of pleading require that pleas in abatement must be filed before pleas in bar or to the merits, and a plea in abatement is waived by pleading to the merits. (Baltimore v. Harris, 12 Wall., 65; OooTc v. Burnley, 116 Wall., 859; Jones v. Railroad Co., 14 Ind., 89; State v. Ruhlman, 111 Ind., 17; 
      Louis v. State, 65 Miss., 468; Oil/more v. Ilowlcmd, 26 Ill., 200; Mills v. Bland, 76 111., 381.)
    JEfy reason of the peculiar nature of the case and the infrequency with which suits are brought in the names of dead persons, the authorities upon the exact point are not numerous. But ip the last above-cited case (Mills v. Bland) a suit had been brought in the name of a dead person. The defendant had pleaded the general issue. Then the death of the plaintiff was suggested, the personal representative substituted, and the declaration amended. In this case the court said, having reference to the action of the court in refusing to permit the defendants to avail themselves of the death of the claimant prior to the bringing of the suit:
    “We do not perceive any error in the action of the court in denying the application. At most it was addressed to the discretion of the court, and had the fact been shown, defendants were in no position to take advantage of it, as the fact, if it existed, could only be pleaded in abatement, and this plea defendants could not interpose, for the reason that thej1- had already filed a plea in bar.”
    In the case of R. R. Qo. v. Harris (12 Wall., 65, 84), the court said:
    “In the proper order of pleading, which is obligatory, a plea in bar waives all pleas, and the right to plead in abatement.”
    In the case of Cools v. Burnley ) 12 Wall., 659, 668), the plea in abatement was stricken from the record on the ground that it was put in after the defendants had pleaded to the merits. The judgment of the court below was affirmed.
    It results, therefore, that it is now too late to set up the fact that.the plaintiff was dead at the time the suit was instituted, and the administrator should be admitted for the purpose of- the further prosecution of the suit.
    Also it is to be borne in mind that this objection (raised by the court) was not raised until after the expiration of the statutory period in which amendment might have been made or a new suit instituted by the personal representative, iipon a suggestion of plaintiff’s death properly made by plea in abatement. This fact is one which has appealed to the court in other jurisdictions, as for instance in the case of Cowan, where suit was brought by an infant as an heir, by his guardian, and the defendants raised no objection until after a new action would be barred by the statute. The court declared in that case that it would save the just rights of the infant by joining the administrator as coclaimant. (Cowarts case, 5 C. Cls. R., 106.)
    Counsel readily admits that in a court bound by the technical rules of pleading the prosecution of a suit and a judgment in the name of a dead claimant is a nullity, but it is also true that in such jurisdictions suits maj'- not be brought, fox-instance, by estates, or by the widow, or by heirs regarding-pex-sonal • property, Iiere it has been decided many times that this court is not bound by the technical rules of pleading-. It is unnecessary to do more than cite some of the- cases in which such decisions have been made. (Thomas v. TJ. 8., 15 C. Cls. R., 335; Little v. District, 19 C. Cls. R., 323; Murray v. U 8., 8125 Ind.; Garcia v. U. 8., 37 C. Cls. R., 213.)
    , In the jurisdiction conferred upon the court by the act of 1883 (the Bowman Act), it is permissible to prosecute the suits in the names of the estates, or in the name of an heir or heirs, even though it be finally necessary to bring in an administrator to whom to award judgment.
    Following the line of these authorities, the court in Indian depredation cases has permitted amendments where the suit was brought by an heir of the owner of the property, though such a suit had been brought by heirs in an ordinary court common law jurisdiction it would have been dismissed for the reason that an action of that character must be brought a pei-sonal x-epresentative; and the court has held that if suit be brought by one partner it may be amended so as permit the addition of other partners. (García-v. U. S., C. Cls. R., 213.) And the amendments in both these cases were permitted notwithstanding the expiration of the statutory period.
    
      Mr. Lincoln B. Smith (with whom .was Mr. Assistant Attorney General Thompson) opposed.
   Peelle, J.,

delivered the opinion of the court:

The question in this case ax-ises on the motion of counsel suggesting the death of the claimant and asking leave to prosecute the action in the name of the administrator of his estate.

While that motion was pending- the case was submitted on the merits for final action; but as the motion, as well as the certificate of the appointment of the administrator filed therewith, failed to disclose the date of the claimant’s death, and the evidence indicated that it was prior to the time of the filing of the petition herein, the case was remanded for more specific evidence on that point.

The motion to revive the case in the name of the administrator was argued and submitted January 19, 1903. In the argument the counsel for the administrator conceded that at the time of filing the original petition herein, December 5, 1891, the claimant, Loreto Gallegos, was dead.

The petition was verified and filed — no doubt in good faith— by one Isaac K. Hitt, who was then, as recited in his affidavit to the petition, acting as the “agent and attorney in fact for petitioner.”

The action was sought to be prosecuted under the act of March 3, 1891 (26 Stat. L., 851), the second section of which, so far as material to this case, reads:

‘ ‘ That all claims existing at the time.of the taking effect of this act shall be presented to the court by petition, as hereinafter provided, within three years after the passage hereof, or shall be thereafter forever barred.”

Section 3 of the act provides:

“That all claims shall be presented to the court by petition setting forth in ordinary and concise language, without unnec-sary repetition, the facts upon which such claims are based, the persons, classes of persons, tribe or tribes, or band of Indians by whom the alleged illegal acts were committed, as near as may be, the property lost or destroyed, and the value thereof, and any other facts connected with the transaction and material to the proper adjudication of the case involved. The petition shall be verified by the affidavit of the claimant, his agent, administrator, or attorney, and shall be filed with the clerk of said court. It shall set forth the full name and residence of the claimant, the damages sought to be recovered, praying the court for a judgment upon the facts and the law.”

The question therefore is, Can the petition thus filed in the name of a dead man bo made the basis of an amendment for' reviving- the action in the name of the administrator of his estate?

This involves the question as to whether the claim was, in the language of section 2, “presented to the court bjr petition,” verified by the claimant, his ag-ent, administrator, or attorney.

As the claimant was not alive when the petition was verified and filed, he could not, of course, act by agent or attorney, for whatever authority he may have conferred in that respect terminated with his death.

It follows- that unless there was once a cause pending, brought within the jurisdictional period, there could be no basis in law or equity for reviving the case in the name of the administrator of the deceased claimant.

When the petition was filed in the name of the dead man it was a nullitj!- — as if no suit had been brought — and could not, therefore, form the basis of any amendment whatever, either as to the parties or the subject-matter. This is unquestionably the rule at common law, and ever has been, and we are aware of no decision of any court to the contrary, nor of any provision of any statute making an exception to the common-law rule in this respect.

In the case of Clay v. Oxford (L. R., 2 Ex., 54), the same question was involved. There an action was commenced in the name of the plaintiff, who, it was afterwards discovered, had died before the date of the writ, and thereafter a summons was taken out to substitute the name of his executrix. The question there was as to whether or not, under the common-law procedure act of 1852, the court had power to make the amendment; that is to say, whether or not the act had made such change in the common law as authorized them to permit the amendment to be made. The court held, all the judges concurring, that they had no such power. That the power of amendment was “limited to cases where there was originally a party suing, possessed, though with a variety in legal description, of the same interest with the party to be substituted.” But it is hardly necessary to cite authorities in support of so elementary a proposition.

When the statute, as in the present case, provides that all such claims “shall be presented to the court by petition * * * within three years after the passage hereof,” that, of course, means that such petition shall be presented, not in the name of a dead man, but in the name of the party in interest as recognized by the rules of law, so that to allow the administrator to file a petition under the guise of an amendment would be to defeat the purpose of the act in respect of the time within which such action must be brought thereunder.

When the Congress conferred upon the court jurisdiction to hear and determine the claims of citizens for property taken or destroyed by Indians, they thereby intended that the court should be governed by the established rules of law applicable to the cases presented under the act, and as the statute itself contains no exception in respect of such amendments, the court has no power to engraft one upon it by way of construction.

In law, therefore, the question is precisely the same as though no petition had ever been filed, and hence the petition of the administrator now sought to be filed is barred by the sections of the statute quoted; and to permit the petition to be filed so as to give the administrator standing in this court would be the exercise of arbitrary power, as the court is without discretion in the premises. The Congress by the act defined the conditions upon which the citizen may maintain an action against the Government and the Indian, and these conditions must be complied with, both as to parties plaintiff and defendant, before, the court can acquire jurisdiction.

The only case seemingly in favor of the claimant’s contention is that of Duran (31 C. Cls. R., 353). In that case a new Indian defendant was allowed to be substituted after the time fixed by the act within which to bring suits, on the ground, as stated by the court, that “this suit is brought against the United States and the Apache Indians. It should have been brought against the United States and the Navajos. The error was an oversight of the attorney, for it appeared on the face of the evidence in the Department of the Interior that the alleged depredation was committed by the Navajos and not the Apaches.”

It will tbus be seen that before the action in that case was commenced in this court the proof filed in the Interior Department, which was transmitted to the court under section 13 of the act, disclosed the real party committing the wrong; so, conceding that there was some foundation for allowing the amendment in that case, it should not be extended to a case liké the present for the reason that here there is no case in court, while there there was, as the United States as well as the Indians are defendants under the act. By the act the United States assumes the liability shown to exist against the tribe for its wrongful acts, but only on condition that such claim shall be presented to the court by petition within three yeai's after the passage of the act.

In our view of the case, therefore, the question is one of jurisdiction, and not of discretion; and as the proceeding in the name of a dead man is a nullity, and so recognized by all courts, it must be held that as the time within which to file petitions under the act long since expired, the motion to revive the action in the name of the administrator bjr way of amendment must be denied and the petition so far as it appears upon the records of the court is therefore dismissed,

Nott, Ch. J.,

dissenting:

The petition in this case was verified and filed by the attorney. Shortly before the filing the claimant had died. His’ administrator now moves to be substituted as claimant and allowed to prosecute as administrator. The jurisdictional period prescribed for the bringing of suits by the Indian depredation act has expired, and if the present application can not be granted the successors in interest of the deceased claimant are without remedy.

The one jurisdictional condition imposed by the statute (sec. 2) is that “all claims shall be presented to the court by petition, as hereinafter provided, within three years.” That jurisdictional condition has been complied with in this case. The claim was presented to the court by petition on the 5th December, 1891; the petition complied, in essential particulars, with all the requirements of the third section; it had been verified; it informed the defendants of all the particulars that it was needful for them to know; it’would have contained no more if the claimant had lived, and it lost none because he died.

When the petition in this case was filed on the 5th day of December, 1891, some person had the right to file it. That person was either the original claimant or his executor or administrator or widow or next of kin. - When the petition was filed within the jurisdictional period the jurisdictional requisite of the statute was complied with. The statute does not say that a suit shall be brought, that the proper writ shall be sued out in the name of the proper party, or that any common-law requisite to the bringing of suits shall be required. All that it says is that such claims “ shall be presented to the court by petition, as hereinafter provided, within three years after the passage thereof” (sec. 2). The “hereinafter provided ” refers to the third section, which prescribes the form and requisites of a petition and relates to procedure and not to jurisdiction. All of the requisites therein prescribed unquestionably come within the realm of amendment and have been subjects of amendment' since this class of cases came into the court. (Duran v. Apaches, 31 C. Cls. R., 353.)

The petition, sotting forth every particular required by the statute, having been filed within the jurisdictional period, the claimants have not lost the right of action granted to them by the statute. The petition having been filed in good faith by an attorney of this court under an authority from the claimant, who had filed this claim antecedent^ in the Interior Department, it is perfectly proper for' the court to consider the petition as having been filed on that da}»' by the attorney for and on behalf of the party in interest who, on that day, had a right to file it; and it is fully within the province of the court’s discretion to allow that party to come in and ratify the act and adopt the petition with needful amendments.

This is not the case of á new claim; of a new cause of action; of a new party. The claim is the same; the cause of action is unchanged; the party is but the legal representative of the party to whom the statute gave a right of action. This representative had a right on the da}r when the petition was filed either to adopt it or to file a new petition; and his admission to the case now is not to bring in a new party or a new claim, but is nothing more than allowing his appearance to relate back to the day when a perfectly good petition was filed, which brought the claim into the court within the jurisdictional period.

The petition in cases coming within the general jurisdiction of this court is dual in its character. It. is both the writ by which the defendants are brought into court and the declaration in which a plaintiff sets forth his cause of action. In these jurisdictional cases it does one thing more; it notifies the defendants, within a prescribed period, of the existence of a cause of action of the class’ contemplated by the statute. (Duran v. Apaches, 31 C. Cls. R.., 353; Davenport v. Kiowas and Comanches, id., 430.)

A statute as old as the Government declares that “ no summons, writ, declaration, return, process, judgment, or other proceedings in civil causes, in any court of the United States, shall be abated, arrested, quashed, or reversed for any defect or want of form,” and that “when hither 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.” (Chap. 20, acts 1789, 1 Stat. L., 91; Eev. Stat., secs. 954, 955.) . ■

Of this statute the Supreme Court has said, in Tilton v. Cofield (93 U. S., 163, 166):

“Allowing amendments is incidental to the exercise of all judicial power, and is indispensable to the ends of justice.”

The question in such cases as this should be, Is the amendment indispensable to the ends of justice? If it is not, it should be refused; if it is, it should be allowed.

Accordingly, this court has always been liberal in allowing amendments and in bringing in or substituting parties in these classes of cases, such as those under the abandoned and captured property act, the French spoliation act, and the Indian depredation act, holding that the legislative intent was that a party entitled to relief should, if possible, be deemed entitled to a trial upon the merits. (Mrs. Thomas’s Motion, 15 C. Cls. R., 335.) Many such cases have gone to the Supreme Court and none has ever been reversed. A notable instance was that of the Elgee Cotton Cases, where the children, having no right of action, instituted the suit but the executrix of the deceased owner was allowed to come in and intervene in their suit after the jurisdictional period had expired, and where the Supreme Court, reversing in part the judgment of this court, awarded judgment in favor of the executrix for $366,170.83. (Heirs of Elgee, 7 C. Cls. R., 605; Elgee Cotton Cases, 22 Wall. R.., 180.)

The only reason for defeating justice by precluding the legal representatives from prosecuting the case when otherwise it is beyond the hope of judicial redress is the dogmatic ruling of the common-law judges that a suit can not be instituted by a dead man, and that where the decedent died between the suing out and the serving of the writ the administrator must begin again. If the administrator only could begin again in this case, the dogma would not be so obnoxious to justice. The common-law judges might just as easily have said that the writ could be amended as to have said that the administrator must begin again. Because they did not say so in a common-law action, where a defendant was liable to be seized and brought into court and imprisoned for debt, is no reason why this court should not say so in a different kind of suit, where the administrator can not begin again and where the defendants have consented to be sued.

But this case does not come within the reason of the common-law rule. A jurisdictional period within which an action must be brought is something which was utterly unknown to the common law. The common-law courts were practically local jurisdictions, trials being held in the vicinage of the defendant. A trial, moreover, was an inconvenience both to the parties and to the public, jurors receiving no compensation for their services and witnesses no fees for attending and testifying. Accordingly, common-law courts- held plaintiffs to a strict accountability, upon the theory that to grant amendments was to encourage negligence. Furthermore, statutes of limitation being unknown to the common law, and the plaintiff being at liberty to withdraw from the bar of the court at any time before the jury left the box, he was free to bring his action over again in proper form under the penalty of paying costs. In cases of the kind now before the court we can not go to the common-law courts for rules and principles, but should direct our action exclusively by what we believe to be the intent and will of the legislative power.

As regards the nonjoinder and misjoinder of parties, the courts of the common law have also been generally strict in exacting exactitude on the part of plaintiffs; but where a cause of action would be lost by operation of the statute of limitations courts of the common law have been liberal in allowing a change of parties. In Brown v. Fullerton (13 Mees. & Weis., 556) the court of exchequer allowed the writ and all subsequent proceedings to he amended bj1- adding the name of the official assignee in bankruptcy as another plaintiff, because ‘ ‘ it appeared that if the amendment were not made the 'statute of limitations would he a har to the recovery of the debt for which the action was brought.” In another English case, Carne v. Malins (6 L. & Eq., 568), the same court, and for the same reason, allowed the plaintiffs to amend the writ by adding as plaintiffs the names of eight new parties, these new parties being in fact copartners in trade with those in whose name the suit original^ stood.

These jurisdictional cases being sui generis, require rules of procedure which will be properly applicable to them, if .not to other cases. When the petition in this case was filed on the 5 th day of December, 1891, some, person had the right to file it. The legal representatives of th'e deceased claimant had that right, or, in the absence of a legal representative — as is now well settled — any person having a direct beneficial interest therein might have filed it. If a wife or child had filed it, the legal representatives, when appointed, might have come in and been substituted as claimants. The fact of the words “administrator of” being prefixed to the claimant’s name in the title, or the words “wife” or “children” of the deceased claimant, would not have aided the defendants in the investigation of the case or in any defense which they might see fit to make. Therefore that omission should be corrected now. Where a claim was brought into court within the jurisdictional period by a petition properly describing it and correct^ giving the name of the part}'' who suffered, the petition should be regarded as having been filed by or on behalf of the party who, on the same day, was entitled to file qt; and he should be allowed to come in and adopt it and amend it, and by means of it prosecute the case. Less than this will defeat the purpose of Congress, which was, that such claims might be prosecuted and determined upon the merits, if the Government was duly notified of the existence of the claim within the period specified by the statute.

a cases has been sent into this court for judicial redress there can not be a supposition more derogatory to the dignity of Congress than to suppose that it was the legislative intent that the rules and technicalities and refinements which once often defeated justice in courts of the common law shall be used to defeat justice in the exceptional case of an occasional individual claimant. Such a case is now before the court, and the question to be determined is simply this, Shall the court go out of its way to invoke, not the common law, but analogies drawn from the common law, to the end that it may deny to this party the right of action which the statute assures .to all of a defined class of claimants? I am of the opinion that it should not.

Wright, J., had not been appointed when this case was tried and took no part in the decision.  