Baker v. Puckett

• Decision Date: 29 September 1930
• Docket Number: 135
• Citation: 31 S.W.2d 286,182 Ark. 265
• Parties: BAKER v. PUCKETT
• Court: Arkansas Supreme Court

31 S.W.2d 286

182 Ark. 265

BAKER v. PUCKETT

No. 135

Supreme Court of Arkansas

September 29, 1930

Appeal from Washington Circuit Court; J. S. Maples, Judge; affirmed.

Judgment affirmed.

John Mayes and Karl Greenhaw, for appellant.

John R Duty, for appellee.

OPINION

MEHAFFY, J.

The appellants, who are residents of Washington County, Arkansas filed suit against the appellee as administrator of the estate of John Puckett, deceased, to recover damages for personal injuries sustained by them in an automobile collision which occurred in Washington County on July 6, 1929. Appellee is a resident of Benton County. The appellants were in a car with Harvey Beachey at the time of the accident. Beachey was killed and appellants injured when the car they were in collided with the car driven by John Puckett. John Puckett was also killed in the collision. Complaint was filed in the Washington Circuit Court, summons issued thereon to the sheriff of Benton County and was served on appellee in Benton County. No service was ever had in Washington County. After the death of John Puckett, his father, J. W. Puckett, appellee herein, was appointed, by the Washington County Probate Court, administrator of the estate of John Puckett, deceased.

Appellants allege that the collision was caused by the negligence and carelessness of John Puckett. Appellee filed a motion to quash the service of summons on the grounds that plaintiffs are residents of Washington County; that defendant is a resident of Benton County, and was at the time of filing the suit and had been at all times since; that the suit was filed in the Washington Circuit Court and summons issued and directed to the sheriff of Benton County and served on the defendant in Benton County; that the defendant has not been served with process in Washington County, and therefore the court was without jurisdiction.

The circuit court held that the suit was brought in the proper forum, but on account of the service in Benton County upon defendant as administrator, the same should be quashed and entered judgment quashing the service of summons. This appeal is prosecuted to reverse said judgment.

The only question for us to decide is whether an executor or administrator can be sued in a county other than the one in which he was appointed. If an executor or administrator can only be sued in the county in which he was appointed, then the service in this case in Benton County is a proper service. If, however, the action is transitory, so that suit may be brought in any county in which the defendant resides or is summoned, the service of summons in this case in Benton County was improper, and the judgment of the court quashing same is correct.

This court has many times held that actions for personal injuries, caused by negligence, are transitory. St. L. I. M. & So. Ry. Co. v. Haist, 71 Ark. 258, 72 S.W. 893; St. L.-S. F. Ry. Co. v. Pearson, 170 Ark. 842, 281 S.W. 910; Stewart v. B. & O. R. R. Co., 168 U.S. 445, 18 S.Ct. 105, 42 L.Ed. 537.

This action, being transitory, could be brought in any county where defendant resides or is summoned unless this action falls within the operation of some statutory provision making it local. Appellant contends that this is in reality a suit against the estate of John Puckett, and that the administrator is only a nominal party; that § 1176 of Crawford & Moses' Digest was intended to protect the real defendant and not a mere nominal defendant like an administrator. Appellant calls attention to and relies on 24 C. J., p. 768. The portion of the paragraph relied on reads as follows: "As a general rule, an executor or administrator cannot sue or be sued in any jurisdiction other than the one in which he was appointed." Several cases are cited as sustaining the text. All these cases show that this has reference to the State and not the county.

The first case cited is Vaughan v. Northrop, 40 U.S. 1, 15 Peters 1, 10 L.Ed. 639. The court in that case said: "On the other hand, the administrator is exclusively bound to account for all the assets which he receives under and in virtue of his administration to the proper tribunals of the government from which he derives his authority; and the tribunal of the other States have no right to interfere with or to control the application of those assets, according to the lex loci. Hence it has become an established doctrine that an administrator appointed in one State, cannot, in his official capacity, sue for any debts due to his intestate in the courts of another State; and that he is not liable to be sued in that capacity in the courts of the latter, by any creditor, for any debts due there by his intestate."

Another case cited is Bryan v. Curtis, 30 App. D.C. 234, and the same principle is announced. Johns v. Herbert, 2 App. D.C. 485; Plumb v. Bateman, 2 App. D.C. 156, are to the same effect. The statute, § 1070, expressly provides that actions for wrongs done to the person may be brought after the death of the wrongdoer against his executor or administrator. We have no statute requiring actions of this kind shall be brought in any particular county. Such actions may therefore be brought in any county in which the defendant resides or is summoned. Section 1176, C. & M. Digest.

"The executors are in a sense trustees, but not of the testatrix who was no longer trustee or representative, but for the beneficiaries under the will and the heirs and creditors. No rule of law with which I am acquainted gives countenance to the idea that there is an official residence for ...