Foley v. Cudahy Packing Co.
| Decision Date | 28 January 1903 |
| Citation | 93 N.W. 284,119 Iowa 246 |
| Parties | T. L. FOLEY, Administrator, Appellee, v. CUDAHY PACKING CO., Appellant |
| Court | Iowa Supreme Court |
Appeal from Woodbury District Court.--HON. JOHN F. OLIVER, Judge.
THE plaintiff brings this action, as administrator of the estate of Iver Olson, deceased, to recover damages for a personal injury resulting in the death of said Olson. The defendant operates a packing plant at Sioux City, and at the time in question was engaged in making repairs and improvements on the buildings used in connection with such plant. Plaintiff's intestate was employed in the work as a carpenter, and on the day of his accident was engaged upon a scaffold elevated some twenty-seven feet above the ground the boards of which broke, whereby he fell to the ground, and sustained injuries from which he died the next day. It is charged that the defendant negligently failed to maintain such scaffold in a safe condition for the work in which Olson was engaged. There was trial to a jury and verdict and judgment in favor of plaintiff. Defendant appeals.
Affirmed.
L. B Robinson and Shull & Farnsworth for appellant.
J. W Hubbard and Wright, Call & Hubbard for appellee.
Appellee has filed an amended abstract, and appellant moves to strike the same--first, because not filed in time; second, because the same is wholly unnecessary and incorrect; and, third, because appellant's abstract sets forth sufficiently the record to fairly present the questions raised by the assignment of errors. Subject to such motion to strike, appellant files a denial of said amended abstract, and avers that the same is incorrect and unfair, and does not contain the entire record. The amended abstract was not filed within the time fixed by the rule invoked by appellant. It was not long delayed, however, and it does not appear that appellant was in any way prejudiced thereby, or that therefrom any delay occurred in the submission of the cause. Where such clearly appears to be the case, we have frequently overlooked an infraction of the rule, and we are agreed such should be done in this case. We cannot consider the second and third grounds of the motion. Under rule 22, a denial of appellant's abstract by the appellee is to be taken as true unless appellant sustains his abstract by a certification of the record; and a denial by appellant of an amended abstract filed by appellee, unless confessed, must be disregarded when not sustained by a certification of the record.
II. The assignment of error first presented in argument raises the question of the jurisdiction of the trial court over the parties and the subject-matter of the action. It appears that Olson died on April 3, 1898. On April 25, 1898, letters of administration were granted upon his estate to Mary Storsend, who qualified according to law. Thereafter, and at the January, 1899, term, said Mary Storsend, administratrix, commenced an action in said court against this appellant upon the identical cause of action here involved, which action was removed from said court, by proper proceedings, to the circuit court of the United States, Northern district of Iowa and there retained. That upon a trial of said action in said circuit court, the same was dismissed by said administratrix without final determination and without prejudice. Thereafter said Mary Storsend, administratrix, resigned, and this plaintiff was appointed administrator in her stead. This action was then brought by him in the state court. The matters above referred to are set up as a separate defense in the answer, and it is said that, by reason of the facts alleged, there was no jurisdiction in the court below to hear, try, and determine this action; that the sole jurisdiction over the same rests and is in said circuit court of the United States. Proof of the facts alleged having been made, the defendant raised the point by motion to direct a verdict at the close of all the evidence, and again by way of motion for new trial.
We can agree with counsel for appellant that in a case brought in the state court, and proper steps being taken to remove the same into the federal court, the state court has no further jurisdiction to act in the case. We do not agree, however, that where a plaintiff in such case chooses to dismiss his action after removal, and without prejudice, he cannot again prosecute an action for the same cause in any forum save that of the federal court. The only case to which our attention has been called, holding the doctrine contended for is Railroad Co. v. Fulton, 59 Ohio St. 575 (53 N.E. 265, 44 L.R.A. 520). In that case reliance was placed upon Cox v. Railroad Co., 68 Ga. 446. An examination of the latter case will disclose that the point in question was not involved. It appears that an action had been commenced in the state court, and removed to the federal court by proper proceedings, where it was dismissed. An effort was made to revive the action in the state court, the evident purpose being to avoid the running of the statute of limitations against the cause of action involved. It was held, in effect, that, the cause having been removed to the federal court, there was no jurisdiction in the state court, to take further cognizance of the same action; that proceedings in the nature of an application to revive the action so previously commenced and dismissed must be made to the court having jurisdiction thereof. The ruling had no reference to the cause of action as distinguished from the action itself. The Ohio case is criticised with some severity in Gassman v. Jarvis (C. C.) 100 F. 146, where it is said: See, also, Wilson v. Milliken, 103 Ky. 165, 19 Ky. Law Rep. 1843 (44 S.W. 660 42 L.R.A. 449, 82 Am. St. Rep. 578); Bush v. Kentucky, 107 U.S. 110 (1 S.Ct. 625, 27 L.Ed. 354); Swift & Co. v. Hoblawetz, 10 Kan.App. 48 (61 P. 969. Such we conceive to be the correct conclusion, and we accordingly hold that this contention of appellant is without merit.
III. A further assignment of error questions the capacity of the administrator plaintiff, and the regularity of his appointment. It appears that Foley was at the time of his appointment, and still is, a non-resident of this state; that he resides in Illinois, and there executed his bond and took the oath as administrator. His appointment is not assailed upon any other ground. It is the rule in some of the states that an appointment of a nonresident as administrator is a void proceeding, and subject at any time to collateral attack. Such rule has not been adopted in this, and in still other of the states. The provision of the statute of this state authorizing the appointment of an administrator contains no limitations. Code, section 3297. The express point here made by appellant was ruled upon by this court in Railway Co. v. Gould, 64 Iowa 343. In that case we held that mere nonresidence alone does not disqualify one so that he may not be lawfully appointed an administrator in this state; that the fact of nonresidence is to be considered simply in connection with the ability, character for integrity, etc., of the proposed appointee, the magnitude and character of the estate, and the extent of personal attention the same will probably require. No sufficient reason is presented for disturbing the rule thus declared, and we therefore adhere to it.
IV. In the examination of jurors, each was asked upon his voir dire by counsel for plaintiff, "Have you any connection of any kind with any casualty or employers' insurance company?" In each instance the question was objected to, the objection overruled, and an exception taken. Such ruling is assigned as error. It is common knowledge that many companies and corporations have been formed in this country for the purpose of, and are engaged in, the business of insuring employers of labor...
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