Davis v. Meridian & Bigbee R. Co., 42848

Citation248 Miss. 707,161 So.2d 171
Decision Date24 February 1964
Docket NumberNo. 42848,42848
CourtUnited States State Supreme Court of Mississippi
PartiesDr. 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.

JONES, Justice:

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:

'Action for wrongful act, omission, or negligence causing death.--A personal representative may maintain an action, and recover such damages as the jury may assess in a court of competent jurisdiction within the state of Alabama, and not elsewhere for the wrongful act, omission, or negligence of any person or persons, or corporation, his or their servants or agents, whereby the death of his testator or intestate was caused, if the testator or intestate could have maintained an action for such wrongful act, omission, or negligence, if it had not caused death. Such action shall not abate by the death of the defendant, but may be revived against his personal representative; and may be maintained, though there has not been prosecution, or conviction, or acquittal of the defendant for the wrongful act, or omission, or negligence; and the damages recovered are not subject to the payment of the debts or liabilities of the testator or intestate, but must be distributed according to the statute of distributions. Such action must be brought within two years from and after the death of the testator or intestate.'

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: 'This period of two years is of the essence of the newly by the statute conferred right of action, and the plaintiff has the burden of affirmatively showing that his action was commenced within the period provided. It is not a limitation against...

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5 cases
  • Cummings v. Cowan, No. DC 74-129-K.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Mississippi
    • 5 Marzo 1975
    ...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......
  • Ramsay v. Boeing Company, 28266.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 29 Octubre 1970
    ...Mississippi would consider itself bound by the construction placed on the statute by the Belgium courts. Davis v. Meridian & Bigbee Railroad Company, 248 Miss. 707, 161 So.2d 171 (1964); Perkins v. Guy, supra; Hamilton v. Cooper, supra. Accord, Pulliam v. Gulf Lumber Company, supra n. 8; Go......
  • Siroonian v. Textron, Inc., 87-4543
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 11 Mayo 1988
    ...a statute placed on it by the courts of the state whose legislature enacted it. Price, 784 F.2d at 605; Davis v. Meridian & Bigbee R.R., 248 Miss. 707, 161 So.2d 171, 172 (Miss.1964). Thus, we look to the Kentucky courts for direction in determining whether the limitations period imposed on......
  • Davis v. National Gypsum Co., 84-4281
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 15 Octubre 1984
    ...Corp., 665 F.2d 566, 571 (5th Cir.1982); Bazdar v. Koppers Co., 524 F.Supp. 1194, 1199 (N.D.Ohio 1981); Davis v. Meridian & Bigbee R. Co., 248 Miss. 707, 161 So.2d 171, 172-73 (1964). National Gypsum cites Ritter v. Aspen Skiing Corp., 519 F.Supp. 907, 908 (D.Col.1981), for the proposition ......
  • Request a trial to view additional results

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