Coe Brass Mfg. Co. v. Savlik

• Decision Date: 04 April 1899
• Docket Number: 119.
• Parties: COE BRASS MFG. CO. v. SAVLIK.
• Court: U.S. Court of Appeals — Second Circuit

93 F. 519

COE BRASS MFG. CO. v. SAVLIK.

No. 119.

Circuit Court, Of Appeals, Second Circuit.

April 4, 1899

Edw. C Perkins, for plaintiff in error.

F. W Catlin, for defendant in error.

Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

WALLACE Circuit Judge.

This is a writ of error by the defendant in the court below to review a judgment for the plaintiff entered upon the verdict of a jury. Error is assigned of the rulings upon the trial that the court had jurisdiction of the person of the defendant and that the plaintiff, as an administratrix, could maintain the action.

This court has no authority, under its appellate powers, to adjudge whether the court below erroneously determined that it had jurisdiction of the action. U.S. v. Jahn, 155 U.S. 109, 15 Sup.Ct. 39. Consequently, only those assignments of error will be considered which relate to the capacity of the plaintiff to maintain the action.

The action was brought by the plaintiff, as the administratrix of John Savlik, deceased, appointed by the surrogate's court of the city and county of New York, to recover damages for his death, caused, as was alleged, by the negligence of the defendant. The defendant alleged in its answer that the letters of administration granted to the plaintiff by the surrogate's court were void for want of jurisdiction in the premises.

It appeared in evidence that John Savlik was a resident of the state of Connecticut, and died there in April, 1897. His widow, shortly after his death, removed to the city of New York, bringing with her a small sum of money, which she had realized by selling the household furniture and collecting a demand which had belonged to him. In the meantime she had been appointed administratrix of his estate in Connecticut by the probate court of the last domicile of her husband, and, according to the record of that court, had accepted the trust. The proceeding seems to have been taken by the procurement of the defendant, with a view of effecting a settlement of its liability for damages for causing the death of her husband.

After her removal to New York, and in October, 1897, she made application to the surrogate's court for letters of administration upon the estate of her husband. Her petition stated that John Savlik was, at the time of his death, a resident of Connecticut, and that he died on the 1st day of April, 1897, 'possessed of certain personal property which since his death came into the county and state of New York. ' Upon this petition, and no other evidence, the surrogate's court made a decree or order that letters of administration be awarded her. The letters, granted October 12, 1897, recited that John Savlik departed this life intestate on the 1st day of April, 1897, 'not being at or immediately previous to his death an inhabitant of the county of New York, but leaving assets therein,' by reason whereof the administration appertains, etc.

At the close of the evidence the defendant moved for the direction of a verdict in its favor, upon the ground that the surrogate's court of the city and county of New York had no jurisdiction to grant the letters of administration, because it appeared that there were no assets in that county at the time of the death of John Savlik, and that there were none brought into that county after his death remaining unadministered. The denial of this motion by the trial judge is assigned as error.

By the statutes of New York, the surrogate's court obtains jurisdiction by the existence of the jurisdictional facts prescribed by the statute and by the citation or appearance of the necessary parties; but an objection to a decree or other determination founded upon any omission therein, or in the papers upon which it was founded, of the recital or proof of any fact necessary to jurisdiction, which actually existed, is available only upon appeal. Code Civ. Proc. Sec 2474. Where the jurisdiction to make a decree or other determination is drawn in question collaterally, and the necessary parties were duly cited or appeared, the jurisdiction is presumptively, and, in the absence of fraud or collusion, conclusively, established by an allegation of the jurisdictional facts contained in a petition used in the surrogate's court. Id. Sec. 2473. Among the cases in which the surrogate's court of each...