Davis v. Meridian & Bigbee R. Co., 42848
Citation | 248 Miss. 707,161 So.2d 171 |
Decision Date | 24 February 1964 |
Docket Number | No. 42848,42848 |
Court | United States State Supreme Court of Mississippi |
Parties | Dr. T. A. DAVIS, Administrator of Estate of Billy Joe Hendley v. MERIDIAN & BIGBEE RAILROAD COMPANY and J. J. Patton. |
Williamson, Pigford & Hendricks, Meridian, J. M. Morse, III, University, Joseph Thompson, Butler, for appellant.
Floyd, Cameron, Deen & Richard, Meridian, for appellees.
Appellant was a foreign administrator appointed by the courts of Alabama. On December 12, 1962, he filed suit in the Circuit Court of Lauderdale County, Mississippi, against appellees for the injury and death of his intestate which occurred on December 25, 1960. He did not comply with Sec. 622, Miss.Code 1942, which reads as follows:
'Executors and administrators who have qualified in other states or countries, may sue in the courts of this state, or may receive without suit and give a valid acquitance for any property of, or debts due to, their testators or intestates, after filing in the office of the clerk of the chancery court of the county where there may be some person indebted to the decedent or having some of his effects in possession, a certified copy of the record of the appointment and qualification of the executor or administrator according to the law of the state or country where he is qualified, and a certificate of the officer before whom he is liable to account as such that he is there liable to account for the thing sued for or received.'
For failure to comply the Circuit Court of Lauderdale County sustained a motion to dismiss. On February 27, 1963, appellant filed a motion to amend, having complied with Section 622 during said month of February. The lower court declined to permit the amendment. We affirm the case.
The wrongful death statute of Alabama, under which this suit was brought, is Sec. 123, Title 7, Alabama Code of 1940, which reads as follows:
The statute (Sec. 622) is plain and clear that a foreign administrator or executor, before filing suit in this State, must file in the office of the clerk of the chancery court a certified copy of his appointment and qualification and a certificate of the officer before whom he is liable to account that he is there liable to account for the thing sued for or received.
This Court has so construed said statute in all the cases coming before it except the case of Gulf, M. & N. Railroad Co. v. Wood, 164 Miss. 765, 146 So. 298, where it was held that under the Federal Employers' Liability Act, it was not necessary to comply with said statute for the reasons stated in said opinion. This opinion was confined to the Federal Act authorizing suit for damages by the persons there mentioned and under the circumstances therein provided. We are unwilling to extend the holding of that case beyond its provisions relative to the Federal Employers' Liability Act.
Therefore, we hold that the Court was correct in dismissing the suit in the first place for failure to comply with Section 622.
It will be noted that the Alabama statute creating the cause of action provides suit must be instituted within two years after the death of intestate. In Louisville & N. R. Co. v. Chamblee, 171 Ala. 188, 54 So. 681, the Alabama Court held: ...
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...Tennessee's one-year statute as procedural only, and would apply the six-year limitation of the forum state. Davis v. Meridian & Bigbee R. Co., 248 Miss. 707, 161 So.2d 171 (1964); Louisville & N. R. Co. v. Dixon, Plaintiffs' action, then, is not barred by the statute of limitations applica......
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