Morris v. Chicago, Rock Island & Pacific Ry. Co.
| Decision Date | 21 April 1885 |
| Citation | 23 N.W. 143,65 Iowa 727 |
| Parties | MORRIS v. THE CHICAGO, ROCK ISLAND & PACIFIC R'Y CO |
| Court | Iowa Supreme Court |
Appeal from Polk Circuit Court.
THE plaintiff alleged in his petition that he had been duly appointed administrator of the estate of Michael Quigley deceased, by the circuit court of Polk county, in this state of which county said deceased was late a resident, and that said Quigley died at Rock Island, Illinois; that he was an employe of the defendant; and that he died from injuries received while coupling cars for the defendant at Rock Island. He further alleged the necessary facts showing that the deceased received the injury from which he died by reason of the negligence of the defendant, and without any contributory negligence on his part. The defendant, by its answer, denied the averments of the petition, and denied that the decedent was a resident of this state, and denied that plaintiff was administrator of his estate; averred that decedent was a resident of Illinois at the time of his death and denied the right of the plaintiff to maintain an action in the courts of this state for an injury causing the death of said Quigley in the state of Illinois. There was a demurrer to that part of the answer which raised the question as to the right of the plaintiff to maintain the action. The demurrer was sustained, to which defendant excepted. The cause was tried on its merits, and there was a verdict and judgment for the plaintiff. Defendant appeals.
AFFIRMED.
Wright, Cummins & Wright, for appellant.
Baylies & Baylies, for appellee.
I.
Counsel for appellant present three propositions in argument. The first is that the circuit court of Polk county had no jurisdiction to appoint an administrator of the estate of Michael Quigley, deceased. The argument is based upon the claim that the deceased left no estate within this state to be administered upon; that whatever claim existed against the defendant for damages for the death of Quigley arose under the law of Illinois, where the injury was received, and where the death occurred; and that by the law of that state a right of action was not in the estate, but in the wife, husband, or next of kin, if there were any surviving. If it be correct, as claimed by appellant, that no right of action existed in this state, it is probably true that there was no estate upon which to administer. But if an action may be maintained in this state by an administrator, we think it necessarily follows that the circuit court had jurisdiction to make the appointment. And it is immaterial in such case whether the decedent was a resident of the state of Illinois or of this state. The power to appoint an administrator in this state for the sole purpose of collecting a claim due to the decedent, has been too long authorized and recognized to be now questioned, and we do not understand counsel to claim otherwise. The alleged want of power in the court to make the appointment is founded on the claim that there was no estate to be administered upon. As will be seen when we come to the third point in this opinion, we hold that the action may be maintained. The point now under consideration demands no further attention.
II. It appears from the record made in the appointment of the plaintiff as administrator that the application for the appointment was sworn to on the third day of July, 1882. The bond, and the jurat to the oath of the administrator indorsed thereon, were dated the same day. All of these papers were filed in the circuit court on the fifth day of July, 1882, and on that day the bond was approved, the order of appointment made, and the letters of administration issued. It is urged that the appointment was void because the oath was taken and the bond made before the appointment. Section 2362 of the Code requires that an administrator must give a bond before entering on the discharge of his duties, and section 2363 provides that he must take and subscribe an oath of office. The bond is required to be approved by the clerk. We think that the signing of the bond and oath before the appointment did not affect the jurisdiction of the court. It is surely no valid objection to the action of the court that a party appears before it with a bond and oath already prepared. They are presented for the approval and action of the court, and it is wholly immaterial whether dated before or after the order of appointment. We think the record shows that the plaintiff properly qualified as administrator.
III. The next question presented by counsel for appellant is, can an action be maintained in Iowa, by an Iowa administrator, upon this claim arising under the statute of Illinois? The statute of the state of Illinois authorizing actions for damages for the death of a person, caused by the wrongful act, neglect or default of another, is as follows:
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Morris v. Chi., R.I. & P.R. Co.
...65 Iowa 72723 N.W. 143MORRIS, ADM'R,v.CHICAGO, R. I. & P. R. CO.Supreme Court of Iowa.Filed April 21, 1885 ... said deceased was late a resident, and that said Quigley died at Rock Island, Illinois; that he was an employe of the defendant; and that he ... ...