Chi., R. I. & P. Ry. Co. v. Forrester
| Decision Date | 19 November 1918 |
| Docket Number | Case Number: 9098 |
| Citation | 177 P. 593,1918 OK 650,72 Okla. 8 |
| Parties | CHICAGO, R. I. & P. RY. CO. v. FORRESTER. |
| Court | Oklahoma Supreme Court |
¶0 1. Appeal and Error--Motion for New Trial--Revivor.
Errors alleged to have been committed by the trial court in making an order of reviver must be presented in a motion for a new trial before they can be reviewed or considered on appeal.
2. Judgment -- Foreign Judgment -- Collateral Attack--Demurrer.
An answer which challenges the action of the probate court of Arkansas in making an order appointing an administrator of the estate of a decedent, who was a resident of that state, on the ground that said decedent did not have or possess any personal or real property at the time of his or her death, is a collateral attack on a judgment of another court, and it is not error to sustain a demurrer thereto.
3. Executors and Administrators -- Removal Effect.
The removal of an administrator of an estate appointed by the probate court of Arkansas after his appointment does not ipso facto vacate or revoke his letters of administration, and an answer which alleges such removal from said state after said appointment, but fails to allege that an order has been made by the court appointing him. vacating and revoking said letters, is insufficient to make an issue on the capacity of said administrator to maintain an action in the courts of this state such administrator.
4. Appeal and Error -- Review -- Erroneous Admission of Evidence--Statute.
Before the court is warranted in reversing a judgment for error in admitting incompetent evidence or testimony, it must appear from the whole record that on account of the admission of such evidence or testimony that there has probably been a miscarriage of justice or constitutes a violation of a constitutional or statutory right.
5. Carriers -- Personal Injury to Passenger--Instructions.
Instructions complained of in the instant case examined and held to fairly state the law applicable to the evidence and facts on which a recovery was sought.
6. Appeal and Error--Judgment -- Partially Erroneous -- Effect -- Affirmance.
When a court renders a money judgment and attempts to fix a lien on the property of defendant to secure the payment thereof, that part of the judgment which attempts to fix said lien although erroneous, does not require a reversal of the cause, but that part of the judgment which attempts to fix an unauthorized lien may be vacated, and the cause affirmed.
Error from District Court, Le Flore County; W. H. Brown, Judge.
Action by Mrs. Jane Pitchford against the Chicago, Rock Island & Pacific Railway Company, revived after plaintiff's death in the name of W. T. Forrester, administrator. Verdict and judgment for plaintiff, and defendant brings error. Modified and affirmed.
See, also, 44 Okla. 197, 143 P. 1146.
W. H. Moore, C. O. Blake, R. J. Roberts, and J. E. Du Mars, and T. T. Varner, for plaintiff in error.
Jo Johnson, for defendant in error.
¶1 This action was begun in the district court by Le Flore county, Okla., by Mrs. Jane Pitchford, against the Chicago, Rock Island & Pacific Railway Company, to recover a judgment for personal injuries alleged to have been received by plaintiff while a passenger on one of the trains of defendant. The parties will be referred to as they appeared in the trial court; that is plaintiff in error as defendant, and defendant in error as plaintiff.
¶2 The plaintiff took passage on one of defendant's trains at Hartford, Ark., on the 5th day of November, 1909, for Howe, Okla. When said train arrived at Howe, Okla., plaintiff was injured in alighting from said train. This action was begun to recover for the injury thus sustained. A judgment was obtained by plaintiff against defendant, and an appeal prosecuted to this court. The judgment was reversed by this court in an opinion written by Mr. Commissioner. Sharp, now Chief Justice of the Supreme Court, and the cause remanded for new trial. Chicago, R. I. & P. R. Co. v. Pitchford, 44 Okla. 197, 143 P. 1146. Before the cause was again called for trial plaintiff died and the cause was revived in the name of W. T. Forrester, as administrator of the estate of Mrs. Jane Pitchford, deceased. At the trial of the cause a verdict was rendered in favor of the plaintiff for the sum of $ 5,000. Judgment was duly entered in favor of plaintiff for said sum, and an appeal is prosecuted to this court to have the proceedings reviewed.
¶3 The first specification of error urged by defendant for a reversal of this cause is as follows:
"The trial court was without jurisdiction to try the case or render judgment therein for the reason that, the original plaintiff, Mrs. Jane Pitchford, having died, the cause had not been properly revived."
¶4 A large part of the brief filed by the defendant in this court is devoted to a discus- sion of the action of the trial court in entering an order of revivor in the name of the administrator of the estate of deceased. An examination of the record discloses that there was not included in the motion for a new trial any complaint of the action of the court in reviving this action in the name of the administrator of the estate of deceased. The order of revivor was entered on the 11th day of August. 1911, at Stigler, Okla. On the 17th day of November, 1916, a special appearance motion filed by defendant for the purpose of having set aside the order of revivor made on the 11th day of August 1916, was heard and overruled. This action was not tried until the 23rd day of November, 1916. In order to have reviewed the action of the court in overruling the special motion of defendant filed for the purpose of having vacated the order of revivor made on the 11th day of August, 1916, it was necessary to have incorporated this alleged error in the motion for a new trial, and a failure to present this question in a motion for a new trial pre- cludes this court from a consideration of this question on appeal. Elsea Bros. v. Killian, 38 Okla. 174, 132 P. 686; Ahren, etc., v. Condon, 23 Okla. 365, 100 P. 556; Stark Bros. v. Glaser, 19 Okla. 502, 91 P. 1040.
¶5 The second assignment of error is that the court erred in sustaining plaintiff's demurrer to section 3 of defendant's amended answer.
¶6 That part of the amended answer to which a demurrer was sustained is as follows:
"Defendant further alleges that if the plaintiff was appointed administrator of the estate of Mrs. Jane Pitchford, deceased, as alleged in his amended petition this defendant is informed and believes and alleges the fact to be that Mrs. Jane Pitchford, deceased, at the time of her death was not the owner of any personal or real property subject to administration, that said appointment was made for the sole purpose of enabling plaintiff to maintain this suit and that under the laws of the state of Arkansas, said court was without authority to make said appointment, and defendant further alleges that since the appointment of plaintiff as such administrator and prior to the order of revivor herein he had moved from the state of Arkansas, and is now a resident of the state of Oklahoma, and a nonresident of the state of Arkansas and under the laws of the state of Arkansas, said plaintiff at the time of said removal forfeited the letters of administration and the power to act thereunder theretofore granted."
¶7 It will be seen from the foregoing answer that the jurisdiction of the probate court to appoint an administrator of the estate of Mrs. Jane Pitchford, deceased, is not called in question. It is attempted to call in question the matters adjudicated by the probate court of Arkansas when said appointment was made. If the probate court of Arkansas had jurisdiction to make the appointment, then it had the jurisdiction to determine whether or not the conditions existed that warranted the making of said appointment, and its conclusion and judgment on such matters were final unless appealed from, and could not be retried in the instant case. The death of Mrs. Pitchford, the existence of property subject to administration, and all other matters that were necessary to be determined in order to make said appointment, were concluded by the order making the appointment, and the attempt to call them in question in this action constitutes a collateral attack upon the judgment of the probate court of Arkansas. There was no error in sustaining the demurrer to such part of the answer as attempted to bring these matters again in question. Evidence thereon could not have been admitted to establish the alle- gations of the answer, and the trial court rightfully eliminated them from the case. A collateral attack could not be made on the action of the probate court of Arkansas in this matter either by the laws of Arkansas or Oklahoma. Apel v. Kelsey, 52 Ark. 341, 12 S.W. 703, 20 Am. St. Rep. 183; section 34, art. 7, Constitution of Ark.; Daugherty et al. v. Feland, 59 Okla. 122, 157 P. 1144; Blackwell et al. v. McCall, 54 Okla. 96, 153 P. 815.
¶8 That part of the answer which alleged that the administrator had since his appointment moved from the state of Arkansas to the state of Oklahoma, and thereby forfeited his letters of administration di not state a defense, and there was no error in the action of the trial court in sustaining a demurrer thereto. The removal from the state did not eo instanti vacate the letters. It was necessary that an order be entered by the probate court of Arkansas upon a proper motion being filed to revoke said letters. The removal from said state furnished a ground sufficient to warrant the probate court in making an order revoking and vacating said letters, but the removal alone did not operate ipso facto to vacate and revoke said letters. The allegation was fatally defective in that it failed to allege that a motion had been filed in the probate court of Arkansas to revoke said letters of administration and an order entered sustaining said motion....
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