Feldman v. Gross

• Decision Date: 10 June 1952
• Docket Number: No. 28722.,28722.
• Citation: 106 F. Supp. 308
• Parties: FELDMAN v. GROSS.
• Court: U.S. District Court — Northern District of Ohio

106 F. Supp. 308

FELDMAN v. GROSS.

No. 28722.

United States District Court N. D. Ohio, E. D.

June 10, 1952.

Edward Lurie, Cleveland, Ohio, for plaintiff.

A. W. Thomas of Boer, Mierky, Thomas, McClelland & Handy, all of Cleveland, Ohio, for defendant.

FREED, District Judge.

Plaintiff, as Administrator of the Estate of Sarah Feldman, sues to recover compensation for wrongful death from the defendant, as Administratrix of the Estate of Saul K. Gross. The parties received their respective appointments in Cook County, Illinois. Plaintiff is a resident of Illinois; defendant is a resident of Pennsylvania. The action arises from an automobile accident which occurred in Columbiana County, Ohio. Defendant was personally served in Cuyahoga County, Ohio while she was paying a one day visit to a relative. The suit was originally instituted in the Common Pleas Court of Cuyahoga County, but was subsequently removed to this Court on defendant's motion. Defendant now moves to quash service and to dismiss the complaint on the ground that the Court is without jurisdiction over the defendant.

A single inquiry is presented: May a foreign administrator (administratrix) be sued in a state other than that of his appointment?

Section 10509-161 of the Ohio General Code provides:

"The several courts of probate, common pleas and superior courts, shall have the same power and authority over such foreign executors and administrators as if they were appointed under the laws of this state."

In Helme v. Buckelew, 1920, 229 N.Y. 363, 128 N.E. 216, 219, the Court of Appeals of New York, when called upon to determine the effect of an almost identical New York statute, construed it to be no more than a declaration of the common law rule permitting suits to be maintained against foreign executors and administrators to the extent of the decedent's property located within the state. Speaking through Judge Cardozo, the court said:

"I think the true view must, therefore, be that the statute removes disabilities, but does not terminate immunities. These are what they always were. Foreign administrators and executors may sue in the same manner as nonresidents, for comity may enlarge the measure of their rights as plaintiffs without encroaching upon the jurisdiction of other courts, or overstepping the limits of our own. Foreign administrators and executors may be sued in the same manner as nonresidents, but only when the subject-matter subjects them to the jurisdiction; for comity, though it may enlarge their rights, cannot, unless it is also the comity of the domicile, enlarge their liabilities, and there is nothing in the statute that unmistakably reveals a purpose to assume, in disregard of comity, a jurisdiction which the accepted principles and usages prevailing between different sovereignties have heretofore condemned."

In Thorburn v. Gates, D.C.S.D.N.Y., 1915, 225 F. 613, 616, Judge Learned Hand limited the effect of the same New York statute to situations wherein property of the decedent was discovered in New York. Judge Hand stated his views as follows:

"Section 1836a of the Code of Civil Procedure of New York must be read in the light of these general ideas regarding the status of executors. No doubt the state of New York, as respects goods situated within its own jurisdiction, might provide that an executor appointed elsewhere should be its own representative, and that process served upon him within its own borders should be effective to determine the disposition of all such goods. Stacy v. Thrasher 6 How. 44, 12 L.Ed. 337, supra; McLean v. Meek, 18 How. 16, 15 L.Ed. 277. Yet if it attempted to go further than this, to take any steps towards the disposition of decedent's goods situated elsewhere and under the existing administration of another state, it would violate the common understanding respecting such matters and expose itself to the disregard of its judgments by the state which had appointed the executor and assumed the direction of his official conduct. Moreover, since the fourteenth amendment, the assumption of such a jurisdiction which conflicted with the exclusive authority of another state over a matter within its jurisdiction would itself be disregarded at the outset, at least in a federal court; nor would the executor be left to the assertion of the invalidity of such proceedings, when it was presented for execution or as evidence."

Compelling reasons prompt this Court to be in complete accord with these decisions. At common law a foreign personal representative was...