Curl v. Ingram

• Decision Date: 16 December 1939
• Docket Number: C. C. No. 614.
• Citation: 6 S.E.2d 483
• Court: West Virginia Supreme Court
• Parties: CURL. v. INGRAM.

6 S.E.2d 483

CURL.

v.INGRAM.

C. C. No. 614.

Supreme Court of Appeals of West Virginia.

Dec. 16, 1939.

Syllabus by the Court.

An assignee for collection of a note stands as agent for the assignor and has no right of action which could not be exercised by the assignor. Consequently, since a foreign personal representative may not prosecute a suit in this state, such fiduciary's assignee for collection of a note may not in this jurisdiction maintain a suit thereon.

Certified from Circuit Court, Ohio County.

Action by Joseph R. Curl against Harry Ingram on notes. The circuit court upheld the plaintiff's right to maintain the suit, and certifies its rulings for review.

Rulings reversed, and judgment rendered for defendant.

Erskine, Palmer & Curl, of Wheeling, for plaintiff.

E. L. Harrison and A. C. Schiffler, both of Wheeling, for defendant.

MAXWELL, Judge.

The bottom question presented by this case is whether an assignee of notes, assigned to him for collection by a foreign personal representative, may prosecute an action thereon in this state against the maker who resides herein.

The circuit court certified for review its rulings upholding the plaintiff's right to maintain suit.

The proceeding is by notice of motion for judgment under Code, 56-2-6. Inasmuch as the facts whereon the plaintiff seeks to ground his action are fully set forth in the notice, the defendant's challenge thereof on jurisdictional grounds should have been by demurrer and not by plea in abatement. Stewart v. Tams, 108 W.Va. 539, 151 S.E. 849. The statute, Code, 56-4-31, authorizing the raising of jurisdictional questions by plea in abatement applies only where the pleading which is objected to alleges proper matter for the jurisdiction of the court. The office of such plea is to bring to the court's attention matters which do not appear on the face of the pleading. Since, however, the trial court and both parties seem to have treated the subject as sufficiently presented by the plea in abatement, we shall deal with the matter as though it had been properly raised by demurrer to the notice.

Alexander H. Fay, resident of the State of New York, and by the authority of that state a duly qualified executor of the last will and testament of Esther Ingram, deceased, assigned to the plaintiff, for collection only, four separate promissory notes, herein sued upon, executed by Harry Ingram, now a resident of West Virginia, payable to the order of Esther Ingram. These notes, with accrued interest, aggregate about $31,600.00.

A foreign personal representative may not maintain a suit in this state. Wirgman v. Provident Life & Trust Co., 79 W.Va. 562, 566, 92 S.E. 415, L.R.A.1918 E, 1715. This is in conformity with the common law rule that letters of administration have no extra-territorial effect, and, consequently, that a foreign personal representative cannot prosecute a suit in another jurisdiction unless there be legislative authorization therefor. Campbell v. Hughes, 155 Ala. 591, 47 So. 45. No statute of this state has granted such right.

It has been held in many cases that where a note has been transferred, that is, full title passed, by assignment by a personal representative in a foreign jurisdiction, the assignee, as owner of the note, may maintain suit in another jurisdiction, though the assignor could not have done so. Campbell v. Brown, 64 Iowa, 425, 20 N.W. 745, 52 Am.Rep. 446; General Conference Ass'n v. Michigan S. & B. Ass'n, 166 Mich. 504, 132 N.W. 94; Owen v. Moody, 29 Miss. 79; Riddick v. Moore, 65 N.C. 382; Mackay v. St. Mary's Church, 15 R.I. 121, 23 A. 108, 2 Am.St.Rep. 881; Barrett v. Gillard, 10 Tex. 69; Gove v. Gove, 64 N.H. 503, 15 A. 121. The reasoning which underlies these decisions and many similar ones is that the title to promissory notes belonging to a deceased person's estate vests in his personal representative; that he has the power to deal with the same as the decedent might have done, and consequently may assign the notes so as to vest full ownership thereof in the assignee who may sue the maker in the jurisdiction wherein the latter resides. But such situation is to be distinguished from an assignment for collection only.

A note may be assigned for collection, but the rights which attend such assignment are strictly circumscribed. It has the effect of a restricted indorsement,...