Echevarria v. Texas Co., 3.

• Decision Date: 17 February 1940
• Docket Number: No. 3.,3.
• Parties: ECHEVARRIA v. TEXAS CO.
• Court: U.S. District Court — District of Delaware

31 F. Supp. 596

ECHEVARRIA v. TEXAS CO.

No. 3.

District Court, D. Delaware.

February 17, 1940.

John W. Huxley, Jr., of Wilmington, Del., for plaintiff.

James R. Morford (of Marvel & Morford), of Wilmington, Del., for defendant.

NIELDS, District Judge.

Motions (1) for summary judgment under Rule 56(b), 28 U.S.C.A. following section 723c; and (2) for judgment on the pleadings under Rule 12(c). A consideration of these motions involves a review of the record of the case.

October 10, 1931, Teodoro Echevarria was employed by defendant in the capacity of oiler as a member of the crew of the motor vessel Texaco #145. On that day while the motor vessel was at sea Echevarria was asphyxiated by exposure to gas fumes while engaged in the performance of duties assigned to him and died almost immediately without leaving a will. September 6, 1933, Estebania Echevarria, mother of Teodoro, was appointed administratrix of his estate by the judge of the district court of the judicial district of San Juan, Puerto Rico. October 4, 1933, Estebania Echevarria, as such administratrix, brought this action under the Seamen's Act of March 4, 1915, § 20 as amended, 46 U.S.C.A. § 688, for the recovery of damages occasioned by the death of Teodoro for the benefit of his widow and minor children. To the declaration defendant filed certain pleas. The 4th plea alleged: "And the said defendant further says that the said Teodoro Echevarria at the time of his death had his residence in Guayanilla in the district of Ponce, Puerto Rico, and that he did not have the greater part of his property, or any part thereof, in the district of San Juan, by reason whereof the said District Court of the Judicial District of San Juan was without jurisdiction to grant letters of administration to the plaintiff in this cause, and the same are null, void, and of no effect; * * *."

The 5th plea alleged: "And the said defendant further says that the said Estebania Echevarria is the mother of the said Teodoro Echevarria, and that the said Teodoro Echevarria left him surviving one Victoria Echevarria, widow, Lydia Echevarria Alicia Echevarria and Dora Echevarria, dependent minor children, the said widow and children being the only heirs at law of the said Teodoro Echevarria, and the said Estebania Echevarria, mother, having under the laws of Puerto Rico no claim or interest as heir at law or otherwise in the estate of the said Teodoro Echevarria; that by reason of the foregoing, the said District Court of the Judicial District of San Juan was without jurisdiction to grant letters of administration to the said Estebania Echevarria, the mother of the said Teodoro Echevarria, and the said letters of administration so granted are null, void, and of no effect; * * *."

On plaintiff's motion to strike the above pleas this court said: "The 4th and 5th pleas tender sound defenses to plaintiff's action. If the court of the judicial district of San Juan in Puerto Rico did not have jurisdiction over the last residence of the decedent or of the place where the greater part of his property was situated that court would not have power to grant letters of administration to Estebania Echevarria, the plaintiff. Also, if Estebania Echevarria was the mother of the decedent and was not a proper party to administer his estate she is without power to sue in this court. It is alleged in the pleas that the decedent at the time of his death was a resident of the District of Ponce, Puerto Rico; that he did not have any property in the District of San Juan and that plaintiff's petition for letters of administration in the District of San Juan was an application to a court which had no jurisdiction over the decedent's estate. These pleas state facts showing that the District Court of the judicial district of San Juan was without jurisdiction to grant the letters of administration to plaintiff."

The allegations of fact in said pleas are established by the record of the probate courts in San Juan and Ponce, a duly authenticated copy of which record is filed in this case.

With the idea of avoiding the effect of the court's ruling plaintiff renewed her application in the probate court of Puerto Rico. This will appear from the duly authenticated copy of the proceedings in the district courts of San Juan and Ponce. That record discloses that on July 13, 1937 Estebania Echevarria made a motion in the district court of San Juan for a transfer of the proceedings to the district court of Ponce "in order that this case may proceed there and that an order of the said court may be obtained, naming the petitioner judicial administratrix of the property of Teodoro Echevarria nunc pro tunc from September 3, 1933, date on which this honorable court named said petitioner judicial administratrix". Thereupon an order was entered in the district court of San Juan transferring the proceeding to the court of the district of Ponce "in order that there it may be transacted in accordance with the law, nunc pro tunc, from September 3, 1933, or whatever date on which this honorable court named the said Estebania Echevarria judicial administratrix". Pursuant to that order the proceedings were transferred to the district of Ponce. April 14, 1938 the district court of Ponce rendered a decision to the effect that "the court takes action to name Mrs. Estebania Echevarria Judicial Administratrix of the property of Teodoro Echevarria upon the posting of a hundred dollar bond." Thereupon the administratrix filed a bond and qualified in the district of Ponce.

May 13, 1938 this plaintiff moved to amend said decision, concluding with the words: "Therefore, the petitioner begs this Honorable Court that it amend its decision of April 14, 1938 directing a decision of a nunc pro tunc character confirming the said acts." May 17, 1938 the district court of Ponce handed down its amended decision stating,...