Bank & Trust Co. v. Telegraph Co.
| Decision Date | 01 December 1908 |
| Docket Number | 10540 |
| Citation | 79 Ohio St. 89,86 N.E. 478 |
| Parties | The Union Savings Bank & Trust Co., Executor, v. The Western Union Telegraph Co. |
| Court | Ohio Supreme Court |
Recovery of damages for injury to real estate - Death of plaintiff - Action may be revived by executor - Appointment of executor - By probate court without jurisdiction void, when.
1. In a suit to recover damages for injuries to real estate by a trespass, the cause of action survives the death of the plaintiff; and the action may be revived in the name of the executor or administrator of the deceased plaintiff.
2. An order of the probate court appointing an executor, if made without jurisdiction, is void, and it may be disregarded in any other court; but if made in the exercise of proper jurisdiction over the subject-matter and estate, although based upon erroneous conclusions of law or fact, it cannot be collaterally attacked.
REHEARING.
Adolphus H. Smith recovered a judgment in the court of common pleas against the defendant in error in the sum of twenty-three hundred and fifty dollars, for damages accruing by unlawful and unauthorized cutting of the limbs and branches of an avenue of trees situated on the farm of the plaintiff. This judgment was affirmed by the circuit court and thereafter was reversed and remanded by the supreme court to the court of common pleas for a new trial. Before the retrial of the case the plaintiff died, being a resident of Clark county. His will was duly presented for probate in the Probate Court of Clark county, and The Union Savings Bank & Trust Company, which was named in his will by the testator as executor, was appointed and qualified as such executor, and has ever since acted as such. The said trust company is a corporation organized under the laws of Ohio. On application therefor, the common pleas court made a conditional order of revivor of the action in the name of said trust company, as such executor. Thereafter, the defendant, The Western Union Telegraph Company, filed an answer objecting to such revivor for the reason that The Union Savings Bank & Trust Company was not the duly appointed and qualified executor of the last will and testament of the decedent and that it had no authority to act as executor for said decedent, was not the legal representative of the same and could not prosecute this action for or on behalf of the decedent or his estate. Other objections against the conditional order of revivor being made absolute were asserted in said answer, but are not material here. The Union Savings Bank & Trust Company, for reply to the answer of The Western Union Telegraph Company with other allegations and denials, alleged that it was the duly appointed and qualified executor and trustee under the last will and testament of the decedent. On full hearing the court of common pleas ordered that the case be revived in the name of The Union Savings Bank & Trust Company, as executor as aforesaid. The circuit court reversed the order of the common pleas court and proceedings thereunder, upon the ground that it erred in ordering the revivor of the action in the name of The Union Savings Bank & Trust Company, as executor as aforesaid. This proceeding is prosecuted to reverse the judgment of the circuit court.
Mr Charles L. Spencer and Mr. Edwin S. Houck, for plaintiff in error.
The probate court has exclusive jurisdiction: first, to probate wills, etc.; second, to grant and revoke letters testamentary and of administration; third, to direct and control the conduct of executors, etc., and settle accounts. Sections 524 and 5995, Revised Statutes; Art. IV, Section 8, Constitution.
The orders of a probate court are even more conclusive than those of a common law court; for they bind the world and not merely parties and privies. Railroad Co v. Belle Centre, 48 Ohio St 273; Lessee of Swazey's Heirs v. Blackman, 8 Ohio 5; Hoffman, Admx., v. Fleming, 66 Ohio St. 143.
A settled axiom of the law furnishes the governing principles by which these proceedings are to be tested. If the probate court had jurisdiction of the subject-matter and the parties, it is immaterial how grossly irregular or manifestly erroneous its proceedings may have been; its final order cannot be regarded as a nullity and cannot, therefore, be collaterally impeached. The power to hear and determine a cause is jurisdiction. It is "coram judice" whenever a case is presented which brings this power into action. Sheldon's Lessee v. Newton, 3 Ohio St. 494; Railway Co. v. Beard, Admr., 20 C. C., 681; Railway Co. v. Gilday, Admx., 16 C. C., 649; Carr, Gdn., v. Hull, 65 Ohio St. 394; Van Fleet on Collateral Attack, paragraphs 540 and 619.
At the time of the application for the order of the Probate Court of Clark county, appointing The Union Savings Bank & Trust Company the executor of Smith, that court had full jurisdiction to pass upon the question whether the trust company was legally competent to act as such executor--whether it was competent to receive such appointment. At that time Sections 3821c, 3821d, 3821e, and 3821f, Revised Statutes, authorizing the appointment, by the probate court, of trust companies as executors, were in full force, and the decision in Schumacher v. McCallip, 69 Ohio St. 500, had not been rendered.
We submit that under Section 5149, Revised Statutes, the allowance of the revivor of the action is entirely within the discretion of the court; and that its order, allowing such revivor, will not be reversed except upon clear showing of an abuse of such discretion. No such abuse of discretion appears from the record. There was none.
That the action, at the death of Smith, passed to his personal representative and not to his heirs or devisees, is fully supported in McPherson v. Seguine, 14 N. Car., 153; Dobbs v. Gullidge, 20 N. Car., 68; Clark's Admx., v. Railroad Co., 36 Mo. 202; Musick, Admr., v. Railway Co., 114 Mo. 300; City of Seymour v. Cummins, 119 Ind. 148.
Mr. Lawrence Maxwell; Mr. Andrew Squire and Mr. Drausin Wulsin, also argued orally in behalf of the plaintiff in error.
Messrs. Martin & Martin; Mr. Robert S. Alcorn and Mr. Edward Barton, for defendant in error.
After the appointment, the Supreme Court of Ohio held that the act which authorized the corporation to act as executor was not constitutional, and that trust companies were without "capacity to receive and exercise appointments as administrators of the estate of deceased persons." Schumacher v. McCallip, 69 Ohio St. 500.
If the action is one which should be revived, then it should be revived in the name of the heir or devisee, and not the executor. The action in this case is one which relates to real estate and is for an injury to realty which passes to the heir or devisee of the decedent and not to the personal representative.
At common law, an action of this kind, if it was for injury to the person and not to the real estate, would have abated. 1 Cyc., 60; Johnson v. Elwood, 82 N.Y. 362; Harris v. Crenshaw, 3 Rand. (Va.), 14; Little v. Conant, 2 Pick., 527.
Under these authorities, and upon principle we submit that this action, if it can survive at all, can only be revived in the name of the heirs or devisees under the will of said decedent. Sections 5154 and 5256, Revised Statutes.
The action was in effect an illegal appropriation of the trees to the use of the defendant. Telegraph Co. v. Smith, 64 Ohio St. 106.
This brings the case within the ruling of the supreme court, in a proceeding to condemn land for the right of way of a railroad, in which it was held that the right of the owner of the land to the damages which accrued by the location of the road through the property passed to the heirs or devisees of the defendant owner. Railway Co. v. Bohm, 29 Ohio St. 634.
The probate court had no power to appoint The Union Savings Bank & Trust Company, a corporation, as executor. Schumacher v. McCallip, 69 Ohio St. 500.
The probate court did not have the power to hear and determine that a corporation which was not legally competent and had not the capacity to act as such executor, could be appointed. The probate court, having only statutory power, it follows that it is a court of limited and restricted jurisdiction. Therefore its decrees do not stand in the same category as those of a court of general jurisdiction. There is this vital distinction between the two. The general rule is that the jurisdiction of a court of general jurisdiction will be presumed, and cannot be collaterally attacked, but even to this general rule there are exceptions, one of which is that even a court of general jurisdiction is required to proceed in such manner as provided by statute, or where the mode of acquiring and exercising jurisdiction is special and statutory, no such presumption will prevail. Work on Courts and Their Jurisdiction, 120, 156, 435.
Where a statute prescribes the qualifications of administrators or executors and in the appointing order is a finding that the party appointed does possess the statutory qualifications, then the order would be conclusive against a collateral attack. Work on Courts and Their Jurisdiction, 455.
Does it not conclusively follow, if the statute does not designate the qualifications of an executor, and the finding would show upon its face that the appointee did not possess the statutory qualifications, that it would be void?
Apply now, this principle to the statute (5995), under consideration. Two conditions confront the probate court when it attempts to act under this statute; it must ascertain before it can exercise its power of appointment of an executor, that there is: first, an executor named in the will; second, that such executor is legally competent to act.
Both of these are jurisdictional facts which precede the right...
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