Bircher v. Foster
| Decision Date | 21 February 1963 |
| Docket Number | No. 3101,3101 |
| Citation | 378 P.2d 901 |
| Parties | Andy E. BIRCHER, Appellant (Plaintiff below), v. Dean FOSTER, Appellee (Defendant below). |
| Court | Wyoming Supreme Court |
Hufsmith & Burns, Robert A. Hufsmith, Jackson, for appellant.
Brooke Wunnicke of Williams, Wunnicke & Fennell, Cheyenne, for appellee.
Before PARKER, C. J., and HARNSBERGER, GRAY, and McINTYRE, JJ.
This is an action for wrongful death arising out of an automobile accident wherein Jerry Bircher, son of plaintiff, was killed while a passenger in a vehicle being driven by defendant. Plaintiff filed complaint on August 7, 1961, just before the expiration of the two-year period of limitation prescribed by § 1-1066, W.S.1957, 1 alleging:
Defendant denied generally the allegations of the complaint and specifically the assertion that plaintiff was the personal representative of the deceased, filing interrogatories concerning the existence of probate proceedings. On October 14 plaintiff answered the interrogatories, stating that 'No probate proceedings have been commenced anywhere in behalf of said Jerry Bircher.'
On October 23 defendant filed motion for summary judgment under the provisions of Rule 56, Wyoming Rules of Civil Procedure, and on November 20 the court granted the motion and ordered that plaintiff recover nothing by the suit. On the same day as the entry of the judgment, plaintiff orally moved that he be appointed the personal representative of Jerry Bircher, and on November 30 an order was entered denying that motion.
Plaintiff has appealed from the summary judgment and the parties have stipulated that plaintiff was the father of deceased that the motion for appointment of personal representative was made after the running of the statute of limitation, and that except for the contingent amount which might be recovered in a wrongful death action there was no property of decedent subject to being probated. By the parties' agreed statement, the questions of law presented are:
1. Whether the court erred in denying plaintiff's motion for appointment of personal representative in the wrongful death action.
2. Whether the court erred in rendering summary judgment against plaintiff for the reason that no probate proceeding had been filed and no administrator or executor appointed within the time limit prescribed in the wrongful death statutes.
3. Whether a plaintiff who affirmatively alleges that he brings an action as personal representative for the benefit of others is a proper party plaintiff in a wrongful death action where no probate proceeding has been filed and no administrator or executor appointed in the decedent's estate.
Plaintiff argues that in suits brought by a personal representative under statutes requiring him to bring the action for the benefit of certain persons, he is merely a nominal party having no interest in the case himself or the estate which he represents, that he does not act in his capacity as executor, administrator, or representative of decedent's estate but as trustee on behalf of the particular persons designated in the Act. It is further urged that the words 'personal representative' include anyone who succeeds to the right of another, such as heirs, next of kin, assignee by contract or operation of law, a trustee, or receiver. Numerous statements of encyclopedic authority are cited and reference is made to various pronouncements of other jurisdictions, but under the circumstances, none of these would seem to merit discussion since previous opinions of this court are determinative of the problem.
Judge Riner in Massion v. Mt. Sinai Congregation, 40 Wyo. 297, 276 P. 930,...
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Corkill v. Knowles
...v. Keever, 513 P.2d 1021, 1022 (Wyo.1973) (interpretation advanced by appellant not supported by any cogent argument); Bircher v. Foster, 378 P.2d 901 (Wyo.1963) (personal representative was not appointed within two year period of limitation and father was not the proper person to bring act......
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Jordan v. Delta Drilling Co.
...1, 18, 288 P. 524, 529, 70 A.L.R. 106, 112. This is true even though the administrator or executor must bring the action. Bircher v. Foster, Wyo.1963, 378 P.2d 901, 902. Nor can we say that the language of § 1-1066(b) requires distribution under the laws of intestacy. It states only that wh......
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In The Matter Of The Estate Of Larry Michael Johnson v. Johnson
...1, 18, 288 P. 524, 529, 70 A.L.R. 106, 112. This is true even though the administrator or executor must bring the action. Bircher v. Foster, Wyo.1963, 378 P.2d 901, 902. See also DeHerrera v. Herrera, 565 P.2d 479, 482 (Wyo.1977). [¶ 13] The central theme of these cases is that an intestate......
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Watts v. State
...1945, § 3-404 with § 12-612 confirms the note. The Wyoming Supreme Court faced a similar problem as the one sub judice in Bircher v. Foster, 378 P.2d 901 (Wyo. 1963). There a father filed a wrongful death action for the death of his son just before the statute of limitations had run. He all......