These appeals arose out of an action by Hannah Keesee to recover damages for the death of her husband, John L. Keesee, in an accident in Virginia. The wrongful death statute of Virginia provides that suit shall be brought “by and in the name of the personal representative of such deceased person;” also that the jury “may award such damages as to it may seem fair and just, not exceeding ten thousand dollars, and may direct in what proportion they shall be distributed to the surviving widow or husband and children and grandchildren of the deceased, or if there be none such, then to the parents, brothers and sisters of the deceased. * * * Nothing shall be apportioned to the deferred class until the preferred class has been exhausted.” Va. Code, 1936, § 5787. The Virginia Code also provides, in § 5123, that a wife who deserts her husband shall be barred of all interest in his estate.
The appellee, Mrs. Keesee, was appointed administratrix here, and sued Greyhound here on August 25, 1936. H. B. Keesee, a brother of the deceased, represented to the West Virginia court that Mrs. Keesee had deserted her husband, and was appointed administrator in West Virginia. In March, 1937, he sued Greyhound there, without notice to Mrs. Keesee and without stating in his complaint that John L. Keesee left a widow. Counsel for Greyhound notified Mrs. Keesee, apparently on May 25, that the West Virginia case would be tried on May 28, that the brothers and other relatives of the deceased would attempt to prove that she had deserted, and that she should protect her interests. She went to West Virginia and on May 28 tendered a motion to intervene and to postpone the hearing so that she might proceed to have the appointment of H. B. Keesee as administrator set aside. He opposed this motion, and she was not allowed to file it. He testified that she and. her husband had separated. Though she remained in the courtroom, neither party called her as a witness. The trial resulted in a verdict for $500 in favor of H. B. Keesee. But Greyhound was not compelled to pay him this sum; on the contrary, it fought for the privilege. On Keesee’s motion, and over Greyhound’s objection, the court set aside the verdict and ordered a new trial. The Supreme Court of Appeals of West Virginia, at the instance of Greyhound, reinstated the verdict, 197 S.E. 522. On the.day judgment was entered, Greyhound paid it.
Meanwhile Mrs. Keesee’s action in .the District of Columbia came to trial, after the court had denied a motion by Greyhound for a stay pending the West Virginia action. It was shown that she had not deserted her husband, and she obtained a verdict of $4000. Greyhound filed a motion for a new trial, and alleged error in denying the stay. While this motion was pending, the West Virginia judgment was paid to H. B. Keesee; and this was urged below as an additional ground for a new trial here. The District Court overruled the motion and entered judgment on the verdict. Greyhound appeals from that judgment, and also from a decree dismissing its bill for an injunction to prevent collection of the judgment.
The injunction suit was rightly dismissed. Appellant alleged in its bill that appellee knew in 1936 that H. B. Keesee had been appointed administrator and in*659tended to sue. It is not clear that this fact is material. In any case, Greyhound offers no excuse for failing to present it in the lawsuit here. Cragin v. Lovell, 109 U.S. 194, 198, 3 S.Ct. 132, 27 L.Ed. 903; Riverside Oil & Refining Company v. Dudley, 8 Cir., 33 F.2d 749, 752. As the other facts on which the injunction suit is based were presented in the lawsuit, appeal from the judgment in that suit was an adequate remedy. Ewing v. City of St. Louis, 72 U.S. 413, 18 L.Ed. 657; Fidelity Storage Co. v. Urice, 56 App.D.C. 202, 12 F.2d 143.
Appellee moved to dismiss the appeal in the lawsuit on the ground that it was late. Judgment was entered on December 16, 1938 and notice of appeal was filed on January 7, 1939. If Sundays and holidays are excluded, this was seventeen days after judgment; if included, twenty-two days. Rule 10 of this court requires appeals to be filed within twenty days after judgment, and Rule 36 provides that limitations of time prescribed by the rules shall 'exclude Sundays and legal holidays. Appellee contends that Rule 36 has been superseded by Rule 6(a) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, which provides for exclusion of Sundays and holidays only when the period prescribed is less than seven days. Rule 6(a) governs “any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute.” Neither “these rules” nor “order of court”, in the Rules of Civil Procedure, can be construed to apply to Rules 10 and 36 of this court. Accordingly the appeal was timely.
Appellee also moved to dismiss the appeal on the ground that no statement of points to be relied upon was served with the designation of record. Rule 75(d) of the Rules of Civil Procedure requires a statement of points to be served “if the appellant does not designate for inclusion the complete record and all the proceedings and evidence in the action.” In this case, five suits arising out of the same accident were consolidated for trial. Appellant says, and appellee does not deny, that appellant’s designation comprised the complete record and all the proceedings and evidence “in the portion of the action from which the appeal was taken.” We think this was a sufficient designation for the purposes of the rule. It left appellee in no need of the protection of the rule, for- it left her in no danger of finding,'on the argument of the appeal, that needed parts' of the record were missing. At all events, nothing in Rule 75(d) makes failure to file a statement of points with such a designation as was made here a mandatory ground for dismissing the appeal.
“It is settled law in this jurisdiction that the action of the trial court in granting or refusing a new trial is not reviewable, unless there has been an abuse of discretion.” Kenyon v. Youngman, 59 App.D.C. 300, 40 F.2d 812. There is no abuse here.
The chief grounds of the motion for- a new trial are the West Virginia judgment, and the refusal of the District Court here to stay proceedings pending the West Virginia suit. Appellant urges that that suit involved the same parties and the same cause of action as this one, and that appellee is concluded here by the judgment there. The burden of proving that the parties in the two suits were identical was appellant’s. It introduced the West Virginia judgment, which is in favor of H. B. Keesee, Administrator. As far as appears, it did not see fit to introduce the West Virginia record. It does not suggest that the record, if introduced, would add strength to its position. It introduced nothing tending to show, and it does not suggest, that H. B. Keesee sought to protect the widow’s interest or presented any claim on her behalf. Its contention that she .is concluded by the West Virginia suit rests on the proposition that, in the circumstances of this case, “any administrator who filed a suit against this defendant would in the eyes of the law represent her.” We' think this proposition is erroneous.
Appellant cites Chicago, Rock Island & Pacific Ry. Co. v. Schendel, 270 U.S. 611, 46 S.Ct. 420, 70 L.Ed. 757, 53 A.L.R. 1265. There an Iowa court, in a suit between a railroad and the widow of one of its employees, had awarded compensation under the Iowa act. A separate suit, likewise for the benefit of the widow, brought in Minnesota by the employee’s personal representative, resulted in an award under the Federal Employer’s Liability Act, 45 U.S. C.A. § 51 et seq. The Supreme Court reversed this award, on the ground that it was barred by the judgment in the Iowa suit, since “the question of identity of parties * * * must be determined as a matter of substance and not of mere form. The essential consideration is that it is the right of the widow, and of no one else, which was presented and adjudicated in both courts.” 270 U.S. at page 618, 46 S.Ct. at page 423, 70 L.Ed. 757, 53 A.L.R. 1265.
*660In the present case it was the right of the brothers and sisters of the deceased, and of no one else, which was presented and adjudicated in West Virginia. A somewhat parallel case is Spokane & Inland Empire Railroad Co. v. Whitley, 237 U.S. 487, 35 S.Ct. 655, 59 L.Ed. 1060, L.R.A.1915F, 736. There the decedent was killed by the defendant railroad in Idaho. Under the Idaho wrongful death statute his widow and his mother were sole “heirs,” taking equally; and “heirs or personal representatives” could sue. The administratrix, who was the widow, sued the railroad in the State of Washington, and recovered a judgment which was paid. The administratrix refused to divide the proceeds with the mother. The mother then sued the railroad in Idaho, and recovered. The Supreme Court affirmed this Idaho judgment, on the ground that the administratrix, in the Washington action, had not represented the mother. Both from the decision of the Idaho court and from “the accepted view of statutes similar to Lord Campbell’s act,” the Supreme Court inferred that in the enforcement of such statutes an administrator cannot represent a beneficiary without the beneficiary’s consent; “Where the personal representative is entitled to sue, it is only as trustee for described persons.” 237 U.S. at page 495, 35 S.Ct. at page 656, 59 L.Ed. 1060, L.R.A.1915F, 736. Likewise in Virginia the administrator, in a death action, “sues, not for the benefit of the estate, but primarily and substantially as trustee for certain particular kindred of the deceased.” Anderson v. Hygeia Hotel Company, 92 Va. 687, 24 S.E. 269, 271. The death statute creates “a new and original right of action in the surviving relatives of the deceased * * * not a mere survival of the cause' of action which had previously existed in the decedent.” Virginia Iron, Coal & Coke Co. v. Odle’s Adm’r, 128 Va. 280, 105 S.E. 107, 116.
The Virginia statute differs from the Idaho statute, and we do not assert that a disinterested administrator could not have sued as trustee for the widow without her consent. The fact remains that H. B. Keesee was not disinterested and did not sue as trustee for her. He sued as trustee for other relatives,' including himself, on the theory that she was disqualified by desertion to share in the proceeds of recovery. 1 His suit was in denial, not in affirmation, of her rights. He could not at the same time represent her and refrain from presenting any claim which would permit the jury to “direct” that any portion of the judgment be “distributed” to her. To hold otherwise would allow her only the form and deny her the substance of representation. The substance, not the form, is controlling. 2 Since her rights are her own and not the decedent’s, she or some one suing in her behalf is an indispensable party to a suit which is to determine her rights. Cases in which an administrator has enforced a claim of the deceased have no application here.
The West Virginia suit and the District suit differed not only as to parties in interest, but also as to the nature and amount of the injuries for which suit was brought. Mental anguish and pecuniary loss are elements of damage under the Virginia death act. 3 Obviously a widow may suffer more anguish and more loss than a brother. The West Virginia *661jury did not pass upon the question of the widow’s suffering and loss. Accordingly, no possible recovery over against the West Virginia administrator could protect the widow’s rights.
In our opinion McCarron v. New York Central Railroad Co.,4 which appellant cites, cannot be reconciled with the Schendel and Whitley cases, supra.
Affirmed.
The opinion below states that he sued “without mention in the declaration that there was a surviving widow”; that “the trial proceeded along a course which utterly ignored her rights and interest as much so as though she had been proven dead”; that the elements of damage peculiar to a wife “were not made an issue in the case by the pleadings, the evidence, or otherwise”; and that “the potential right of Mrs. Keesee as sole beneficiary was never put in issue.” The record shows that H. B. Keesee sought and obtained appointment as administrator by representing that Mrs. Keesee had deserted her husband; also that Greyhound represented to Mrs. Keesee that the brothers and other relatives of the deceased would attempt to prove in the West Virginia trial that Mrs. Keesee had deserted her husband and therefore was not entitled to share in any recovery. The record does not disclose the further evidence on which the findings of fact just quoted are based'. But counsel for Greyhound does not attack those findings on that or any other ground; he attacks only the legal conclusions which the court drew from them. By implication he concedes the quoted findings to be correct, for he refers in his brief to the fact that H. B. Keesee “did not prove all that he might have proved concerning the damages and the beneficiaries who were to share the verdict of the jury.”
Spokane & Inland Empire R. R. Co. v. Whitley, supra; Chicago, Rock Island & Pacific Ry. Co. v. Schendel, supra.
Portsmouth St. R. Co. v. Peed’s Administrator, 102 Va. 662, 47 S.E. 850; Ratcliffe v. McDonald’s Administrator, 123 Va. 781, 97 S.E. 307.
239 Mass. 64. 131 N.E. 478.