234 F2d 691 Nicol v. Baird

234 F.2d 691

Mary L. NICOL and Frances Nicol McKone, Appellants,

v.

Bruce BAIRD, President, National Savings and Trust Company, Executor, Estate of Frederick Edgar Johnston, Appellee.

No. 12997.

United States Court of Appeals District of Columbia Circuit.

Argued May 14, 1956.

Decided June 7, 1956.

Miss Jessie P. Grandy, Washington, D. C., for appellants.

Mr. David C. Bastian, Washington, D. C., with whom Messrs. Arthur P. Drury, John M. Lynham and John E. Powell, Washington, D. C., were on the brief, for appellee.

Before EDGERTON, Chief Judge, and PRETTYMAN and WASHINGTON, Circuit Judges.

PER CURIAM.

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1

The caption of the complaint herein named as defendant —

2

"Bruce Baird, President
 National Savings and Trust Co., Executor
 Estate of Frederick Edgar Johnston
15th St. and New York Ave. N. W.
Washington, D. C."
3

The National Savings and Trust Comany, whose President is Mr. Baird, was in fact the Executor of the Estate of Frederick Edgar Johnston, and the body of the complaint sought relief against that estate. Service of the summons and complaint was made on a Vice President of the Trust Company. Mr. Baird moved to dismiss the action on the ground that "he is not an executor of the estate of Frederick Edgar Johnston, deceased, and therefore he is not the proper party defendant." Plaintiff then moved to amend the summons and complaint to name as defendant the "National Savings & Trust Co., Executor." The District Court dismissed the action in its entirety, and denied the motion to amend as being moot. This appeal followed.

4

Under the circumstances, the court could properly dismiss the complaint as to Mr. Baird personally; his name nowhere appears in the body of the complaint, and appellant does not urge that dismissal as to him was error. But we think the court erred in dismissing the entire action. The Trust Company had been served with a complaint which demanded relief against it in its capacity as executor. Evidently on the theory that it was not a party, it made no motion to quash or to dismiss. We think it was a party, and no good reason here appears for dismissing the action against it.

5

The judgment of the District Court must therefore be vacated and the cause remanded for further proceedings not inconsistent with this opinion.

6

So ordered.