Benker v. Meyer
| Decision Date | 07 May 1907 |
| Docket Number | 2,483. |
| Citation | 154 F. 290 |
| Parties | BENKER v. MEYER et al. |
| Court | U.S. Court of Appeals — Eighth Circuit |
This was a suit in ejectment to recover possession of land in Nebraska. The defendants justified their possession under certain attachment proceedings in the courts of Nebraska and a purchase of the land by them at a judicial sale made therein. They were creditors of one Petterson, a resident of South Dakota, who owned the Nebraska land. They instituted a suit by attachment against him in the district court of Cedar county, Neb., and levied on the land. Before process had been served on him Petterson died. Afterwards an administrator of his estate was duly appointed in South Dakota, and not elsewhere, and defendants, who were plaintiffs in that suit secured a conditional order of revivor of the action against the administrator and an order of publication against him. Pursuant to the requirement of that order the foreign administrator, whose name was Gutterson, appeared and ineffectually moved to discharge and dissolve the attachment suffered judgment by default to go against him in his representative capacity for the debt and an order to be made requiring the land to be sold to satisfy the judgment, moved to set aside the default and for leave to defend, and prosecuted a petition in error from an order denying that motion to the Supreme Court of Nebraska where the judgment of the district court was affirmed. In all these proceedings the fact appeared by the pleadings that Gutterson was a foreign administrator appointed in South Dakota only and in no stage of the case did he make any objection to the jurisdiction of the court by reason of that fact. The plaintiffs in that suit purchased the land under the order of sale therein made and after the affirmance of their judgment by the Supreme Court the present plaintiff, Benker, was appointed administrator of Petterson's estate in Cedar county, Neb., and brought this suit in ejectment against the defendants to recover the land so purchased by them, on the ground that the proceedings and judgment in the attachment suit were without jurisdiction and void. The foregoing facts appearing, the court below directed a verdict and rendered a judgment in favor of the defendants. To secure a reversal of that judgment this writ of error is prosecuted by the plaintiff.
Robert B. Tripp (J. C. Robinson, Robert J. Gamble, and John Holman on the brief), for plaintiff in error.
Henry C. Gardiner (Rich, Searle & Clapp, on the brief), for defendants in error.
Before SANBORN, HOOK, and ADAMS, Circuit Judges.
ADAMS Circuit Judge, after stating the case, .
Counsel in the presentation of this case have narrowed the question to this: Whether the district court of Cedar county, Neb., originally acquired jurisdiction over the foreign administrator appointed in South Dakota or whether that administrator by his voluntary appearance or subsequent affirmative action in that court and in the Supreme Court of Nebraska in the same case subjected himself to the jurisdiction of the Nebraska court, and whether, if that court acquired jurisdiction in either way, its judgment is res adjudicata of the question now before us.
An administrator is generally answerable only to the courts of his own state, and cannot, in the absence of statutory authority, be sued in a foreign jurisdiction. Vaughan v. Northup, 15 Pet. 1, 10 L.Ed. 639; Mellus v. Thompson, 1 Cliff. (U.S.) 125, Fed. Cas. No. 9,405; Lewis v. Parrish, 53 C.C.A. 77, 115 F. 285; Burton v. Williams, 63 Neb. 431, 88 N.W. 765. Whatever power or authority an administrator may exercise outside of the state of his appointment 'is a mere matter of comity, which every other state is at liberty to accord or withhold according to the policy of its own laws and with reference to the interests of its own citizens. ' Cases supra.
How does this case stand when viewed in the light of these accepted principles? The nonresidence of Petterson, the owner of the land in question, subjected it to attachment at the suit of his creditors (Comp. St. Neb. 1901, Sec. 5762), and service of summons by publication was sufficient (section 5669). Jurisdiction of the court and power to control all subsequent proceedings was acquired immediately upon the issuing of the order of attachment. Section 5797, supra. Petterson's death before the service of process did not affect the jurisdiction of the court so acquired, but 'full control of all subsequent proceedings' under the attachment laws of Nebraska was expressly conferred upon the court notwithstanding such death. Section 5979, supra. By reason, doubtless, of the contingent liability of real estate for the debts of the deceased the statute requires that where such real estate as well as where personal property is attached, in the event of the death of the defendant at any time after issuing the order of attachment, the proceedings shall not abate, but shall be carried on, and 'his legal representatives shall be made parties to the action. ' Section 5797, supra. The revival of an action against the personal representatives of a decedent by a conditional order to be served when such representatives are nonresidents of the state by publication is provided for. Sections 6037-6041, supra. Pursuing the course marked out by the foregoing statutes, an order of revivor was made against Gutterson, the foreign administrator of Petterson's estate, and he appeared to the action and conducted the unsuccessful defense stated. The learned trial court held that the revivor so made against the foreign administrator was fairly contemplated and authorized by the general language of sections 5797 and 6038, which provide that the 'legal representatives,' without discriminating between domestic and foreign, shall be made parties to an action by revivor; and he cites in support the case of Brown v. Brown, 35 Minn. 191, 28 N.W. 238, where under a similar statute that view is approved. He also called attention to section 6041, supra, relative to reviving actions against representatives of a deceased defendant, where notice by publication is expressly provided for against a 'nonresident of the state' and to other provisions of the statutes whereby power is conferred upon foreign administrators to commence and prosecute suits in Nebraska and to sell real estate therein belonging to the estate of the deceased. From a consideration of these things he held that the state has adopted such a policy of comity towards foreign administrators by admitting them into the state for so many kindred purposes that reasonableness and consistency both unite in the conclusion that the Legislature of the state by sections 5797 and 6038, supra, intended by the use of the general terms 'legal representatives' and 'representatives,' therein employed without discriminating between domestic and foreign, to include any personal representative of the deceased wherever constituted and render them liable to proceedings to revive an action. There is much force in that reasoning, but, as the Supreme Court of Nebraska has not construed the statute in question, and as we find other satisfactory grounds for our conclusion, we deem it inadvisable to anticipate that court in construing its local laws.
The facts of this case show that Gutterson, the former administrator, after service of process had been made upon him in the proceedings to revive the action, appeared and moved to discharge the attachment levied upon the real estate in question. He availed himself of the provisions of section 5800, supra, and filed an unsuccessful motion 'to set aside the order allowing the attachment and to discharge the attachment and levy. ' He then filed what is called an 'answer and separate defense.' By those proceedings he raised some issues of fact and two questions of law: (1) Whether the attachment was void for want of a preliminary bond given by the attachment creditors; and (2) whether a revivor of the suit was lawful in the absence of a service of summons upon the defendant before his death. These questions were decided against him and properly so. Brown v. Brown, and section 5797, supra. There being no further pleading by defendant, judgment by default was rendered against him, and the land was sold to satisfy the judgment. Six months thereafter the administrator again appeared and moved the court to set aside the default and grant him leave to appear and defend the action. That motion was denied, and Gutterson prosecuted a petition in error from the...
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