Baxter v. Harrison, 6235
| Decision Date | 19 February 1958 |
| Docket Number | No. 6235,6235 |
| Citation | 83 Ariz. 354,321 P.2d 1019 |
| Parties | Ethel E. BAXTER and Claude E. Baxter, her husband, Appellants, v. Bruce HARRISON and Merna W. Harrison, his wife, Appellees. |
| Court | Arizona Supreme Court |
Charlie W. Clark and Roy R. Carson, Phoenix, for appellants.
Shimmel, Hill & Cavanagh and Herbert Mallamo, Phoenix, for appellees.
This is a suit for damages under the wrongful death act, § 31-102, A.C.A.1939, A.R.S. § 12-612, brought by the mother and father of decedent. The complaint alleged that the appellants, plaintiffs below, prosecuted the action as personal representatives of the decedent for the benefit of the persons who would be entitled to distribution of the personal estate of the decedent under the law of descent and distribution of the State of Arizona. The appellees, defendants below, filed an answer which did not raise the issue of the capacity of plaintiffs to sue by a specific negative averment, but it was alleged that the complaint fails to state a claim entitling plaintiffs to relief.
A deposition taken of one of the plaintiffs shortly before trial date disclosed facts which were set forth in an affidavit in support of defendants' motion for a summary judgment as follows: that the decedent was of the approximate age of thirty-seven years, was married to Doris Baxter and was living with her as husband and wife up the the date of death; that decedent died at Phoenix, Arizona, and at the time of death left personal property in Maricopa County subject to administration in Arizona on the value of $7,500; that the decedent died testate and his will was admitted to probate in a court of competent jurisdiction at Davenport, Iowa, and that Howard P. Eckerman, of Davenport, Iowa, had been appointed and acts as the executor of the last will of decedent; and that neither of plaintiffs have been appointed as a personal representative of the estate of decedent in Arizona or any other state.
Plaintiff Ethel E. Baxter filed a controverting affidavit in opposition to the affidavit in support of the motion for a summary judgment, stating decedent and his wife were residents and domiciled in the State of Iowa; that at the time of death decedent and his wife had a Cadillac automobile and a housetrailer which were subsequently taken to Iowa by the surviving spouse; that the affidant had never seen the certificates of title and had no knowledge as to whom held title to the property at the time of death. After hearing oral argument the trial court granted the motion for summary judgment with leave to amend within five days; no amended complaint was filed and plaintiffs bring this appeal.
Under the facts set forth in the motion for summary judgment it is apparent that plaintiffs were not personal representatives of decedent nor proper persons to bring the action for wrongful death under § 31-102, supra. We hold the action could only be instituted...
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Aranda v. Cardenas
...that language in other Arizona cases suggests that the lack of capacity to sue is an affirmative defense. See Baxter v. Harrison, 83 Ariz. 354, 356, 321 P.2d 1019, 1021 (1958) ("The defense or objection of lack of plaintiffs' capacity to sue is waived unless presented either by a motion, or......
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...for judgment subject to the right to amend, if it did not in fact decide the case on the question of joint venture. Baxter v. Harrison, 83 Ariz. 354, 321 P.2d 1019. The New Mexico Guest Statute, N.M. Stats.Ann. § 64-24-1 (1953), is taken verbatim from the guest statute of the state of Conne......
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