East Tennessee, V. & G. Ry. Co. v. Mahoney

• Decision Date: 01 November 1890
• Citation: 15 S.W. 652,89 Tenn. 311
• Parties: EAST TENNESSEE, V. & G. RY. CO. v. MAHONEY.
• Court: Tennessee Supreme Court

15 S.W. 652

89 Tenn. 311

EAST TENNESSEE, V. & G. RY. CO. v. MAHONEY.

Supreme Court of Tennessee.

November 1, 1890

Error to circuit court, Knox county; S. T. LOGAN, Judge.

Baxter Henderson & Jourolmon and Mr. Poston, for plaintiff in error.

Mr Ingersoll and M. Cocke, for defendant in error.

SNODGRASS J.

The husband of defendant in error was an engineer in the service of the Memphis & Charleston Railroad Company. While in such service he was killed, on the 25th December, 1886, by the derailing of his engine. His widow was appointed administratrix of his estate by the county court of Knox county, and brought this suit in the circuit court for $20,000 damages against the East Tennessee, Virginia & Georgia Railway Company, alleging that said company was the lessee of and running and operating the road on which her husband was killed, and that such killing was occasioned by the negligence of said company, acting through its officers and servants, the superiors of deceased. There were two trials below, and verdicts in favor of the plaintiff. Both were set aside by the judge because not sustained by the evidence. Finally the case was dismissed on demurrer of defendant, because the declaration did not sufficiently show that the county court of Knox county had jurisdiction to appoint the administratrix, who was suing herein. The plaintiff appealed, and, at the last term of this court, the judgment was reversed, and the case remanded for further proceedings. ^[1] In the judgment here reversing that below it is recited that "the validity of plaintiff's letters of administration is not open to attack in this suit," and in the subsequent proceeding in the court below this recital was treated as an adjudication of the question which had been presented, as well as of that which the defendant attempted subsequently to present by plea denying the validity of the appointment, upon the ground that deceased resided in Tennessee at the time of his death, but had no residence in Knox county. It is argued here that such recital in the decree is res adjudicata. This position is incorrect. As said in the case of Sanders v. Logue, 88 Tenn. 359, 12 S.W. 722,

the precise verbiage of decrees cannot always be noticed or shaped by any court, in the very nature of things, under our practice. If the language used makes the decree broader than the point in decision permitted, the effect of it is limited to that point, as was decided in that case, and has been decided in numerous others not necessary to cite.

The point in issue, and which the court was determining, was whether a suit of an administratrix could be dismissed on demurrer because the declaration did not show that the county court of Knox county had jurisdiction to appoint her. The court determined this question negatively, and reversed. No written opinion was given, because it was deemed wholly unnecessary. No declaration has to show affirmatively that the county court appointing an administrator, who brings a suit, had jurisdiction to appoint him, in every suit he may bring requiring a declaration. It is always sufficient to aver the representative character, and, if it is averred, it is obvious that the pleader need not go further, and "sufficiently show the jurisdiction of the appointing court." This proposition, never having been controverted in any opinion of this court or any other, we thought too plain for controversy; particularly when our court had held that on a mere averment of the representative character the presumption of the validity of the appointment was so strong that a plea denying it would have to traverse every ground upon which such appointment might have been lawfully made by a county court, (Hale v. Kearly, 8 Baxt. 50, 51,) the exact converse of the proposition that the declaration must affirmatively show that the appointment was lawfully made. The court having, for this reason, determined this question without writing that which it was supposed every one would deem superfluous, the decree was entered; and it seems that the language employed, instead of showing that the validity of the letters of administration was not open to inquiry in this suit, because of the failure to sufficiently show the jurisdiction of the county court, states that such validity is "not open to attack in this suit." The general terms used are therefore too broad, and are in their meaning and effect limited to the point in issue, and then being determined, according to the principle of the Logue Case, referred to. In this view, the question whether the language used in the judgment was inadvertent in its preparation or expression from the court is immaterial. The result is the same. The decision was as stated, and could extend no further. It follows, then, that the defendant was not cut off from any contest as to the representative character of the plaintiff, and a proper plea, denying that plaintiff was administratrix, might still be entertained after the reversal, (Cheek v. Wheatly, 11 Humph. 555,) as such proper plea of ne unques administrator is not in abatement, but in bar, (Shown v. Barr, 11 Ired. 296,) and may be pleaded with the general issue, ( Flinn v. Chase, 4 Denio, 85.) See 2 Williams Ex'rs, (4th Amer. Ed.) 1595-1654, and notes.

The defendant filed a plea which does not deny that plaintiff was appointed administratrix by the county court of Knox county but "traverses the allegation that he was the legal representative, and avers that, at the date of the death of Thomas Maloney, his usual place of residence was in Shelby county, Tenn., and that at that date he had no fixed residence in Knox county." Not having denied in this plea that the county court of Knox county had appointed plaintiff, as the declaration averred, and letters of administration (of which profert was made, oyer craved, and letters set forth) showed, that fact is admitted in the plea. Code, § 2907, (Mill. & V. § 3620.) The only issue tendered and raised by the plea was that the appointment, as made, was invalid because of the non-existence of certain facts upon which the jurisdiction of the county court to make it depended. This plea was on motion of plaintiff stricken out. The reason assigned by the court for striking out was that the question was settled by judgment of this court that such defense could not be made. We have seen that this was not correct; but if the action of the circuit judge was correct, however erroneous the reason assigned for it may be, the judgment will, of course, be sustained.

This brings us to determine whether such question can be raised by plea, and the appointment of an administrator collaterally attacked upon averment of facts showing that no residence of an admitted intestate (residing at time of death in Tennessee) was in the county wherein the appointment was made by the county court. It has long been settled in this state that as to matters of administration the county court is a court of general jurisdiction. Brien v. Hart, 6 Humph. 131. In consequence, it follows: First, that its judgment, exercised in the appointment of an administrator, need not recite the facts upon which it was made; and, second, that, being authorized to determine for itself the existence of the facts which authorize it to appoint an administrator on the estate of an intestate resident of Tennessee, its determination of such facts is conclusive in any collateral attack in another court. Of course, the rule could not extend to a case where no appointment could be legally made by any court, as on the estate of a living man. D'Arusment v. Jones, 4 Lea, 251. The plea, therefore, presented no defense, and was properly stricken out. The case was then tried on its merits, on issues raising all the questions to be hereinafter noticed, before a special jury, (demanded by defendant.) This trial resulted in a third verdict against defendant for $47,500. Motion for a new trial being overruled, defendant appealed, and assigned errors. In addition to the question already discussed, the errors assigned are:

First. That it was error to allow an amendment of writ and declaration so as to substitute "Railway Co." for "Railroad Co." The writ does not appear to have been so amended. The supplied writ in the record runs against the railway company. The declaration was amended; but it is well settled that such amendment is proper. Besides, it was immaterial, there being no plea in abatement for misnomer. Caruth. Lawsuit, § 189. And, finally, the objection was waived by appearance and trial on its merits.

Second. It was error to render judgment against the East Tennessee, Virginia & Georgia Railway Company, because there was no proof to show it was operating the Memphis & Charleston road, or had plaintiff's intestate in its employment when killed. There was evidence to this point, and the jury was authorized to pass upon it, and has done so. This verdict, under the rule, cannot be disturbed where there is any legitimate evidence to sustain it.

Third. It was error to allow plaintiff to amend her declaration on 24th June, 1889, so as to insert an averment that her husband was temporarily residing in Memphis, but with his home in Knoxville, when killed; because the killing was on 25th December, 1886, and suit was barred when the amendment was made, more than a year having elapsed. We have already seen that this amendment was immaterial; but, had it been material, it would have been authorized at that date, the statute of limitations having nothing to do with it. The suit had long since been properly brought, and within the year, by and against proper parties. Amending the declaration did not affect the pendency of the suit, nor originate a new one. It but added an averment in a case already stated. Railroad Co. v. Foster, 10...