Gross v. Hocker

• Court: Iowa Supreme Court
• Writing for the Court: GARFIELD; All Justice concur, except SMITH
• Citation: Gross v. Hocker, 243 Iowa 291, 51 N.W.2d 466 (Iowa 1952)
• Decision Date: 05 February 1952
• Docket Number: No. 48001,48001
• Parties: GROSS v. HOCKER et al.

Page 466

51 N.W.2d 466

243 Iowa 291

GROSS v. HOCKER et al.

No. 48001.

Supreme Court of Iowa.

Feb. 5, 1952.

Steward & Crouch, of Des Moines, for appellant.

Westfall, Laird & Burington, of Mason City, for appellee Fred Hocker.

Breese & Cornwell, of Mason City, and Leming & Hobson, of Hampton, for appellee Alice Grosshuesch, administratrix.

GARFIELD, Justice.

On September 26, 1949, Paul Grosshuesch, a Wisconsin resident, was riding in an automobile driven by his brother Calvin when it collided with a truck driven by Fred Hocker in Franklin county, Iowa. Paul and Calvin died from injuries received in the collision. Plaintiff was appointed and qualified in Wisconsin as administrator of Paul's estate. On January 30, 1951, plaintiff filed petition in the district court of Franklin county for appointment as ancillary administrator there and that court ordered 'Let appointment be made as prayed upon filing bond of $1000 to be approved by the clerk.'

Also on January 30 plaintiff commenced this law action in the district court of Hancock county, Iowa, where Calvin resided, against Hocker and Alice Grosshuesch, administratrix of Calvin's estate, to recover for Paul's death, alleging it was caused by negligent driving of Hocker and Calvin. (It was claimed Paul was not Calvin's guest within the meaning of section 321.494, Code 1950, I.C.A., which limits liability to driving recklessly or under influence of liquor.)

Calvin's administratrix answered that plaintiff's claim against her was barred because not filed within six months from the giving of notice of her appointment as required by Code section 635.68, I.C.A. Allegations of plaintiff's reply designed to state peculiar circumstances entitling him to equitable relief from the bar of 635.68 were stricken as insufficient. Under Rule 332 of Civil Procedure, 58 I.C.A., we granted plaintiff an appeal from this ruling and the propriety thereof is now before us.

On March 12, 1951, defendant Hocker moved to dismiss plaintiff's petition because it fails to state plaintiff was the duly appointed and qualified ancillary administrator in Iowa of Paul's estate and he therefore had no right to sue. In this connection it is agreed plaintiff did not qualify as ancillary administrator by filing his oath and bond until March 5, 1951. Hocker's motion to dismiss was sustained and plaintiff has also appealed from this ruling.

I. We think it was error to dismiss the petition upon the ground asserted. We will assume, without so holding, defendant Hocker could in this action challenge plaintiff's appointment and qualification as ancillary administrator. The petition alleges and the motion to dismiss admits plaintiff is the duly appointed, qualified and acting administrator in Wisconsin where Paul was domiciled.

It is the general rule in Iowa and elsewhere that a foreign administrator cannot, in the absence of statute, maintain an action in another state such as Iowa to recover assets of the estate. Knight v. Moline E. M. & W. R. Co., 160 Iowa 160, 163, 140 N.W. 839, and citations; Finnerty v. Shade, 210 Iowa 1338, 1342, 228 N.W. 886; Restatement, Conflict of Laws, section 507; 34 C.J.S., Executors and Administrators, § 1008a(1); 21 Am.Jur., Executors and Administrators, section 852.

The underlying reason for this rule is that a state will not allow property within its jurisdiction to be so taken by a foreign administrator as to deprive its own citizens of opportunity to enforce their claims against it. The rule does not arise from any want of legal right in the foreign administrator or lack of inherent authority in the court to accord him recognition. See authorities last above, also Ghilain v. Couture, 84 N.H. 48, 146 A. 395, 65 A.L.R. 553, 557-559, and citations.

That the reason for the rule is as above stated is indicated in the requirement of Code section 633.51, I.C.A., that a foreign administrator in order to be appointed ancillary administrator in Iowa must give bond 'conditioned for the payment of all claims allowed to residents of the state, and * * * all legacies and distributive shares coming to such residents, so far as the assets thereof shall extend, * * *' and the provision of 633.52 that the court 'may require payment of all claims * * * belonging to residents of this state, and of all legacies or distributive shares payable to such residents, before allowing the estate to be removed from the state.'

The basic reason for the above general rule has no application to an action for damages for wrongful death where decedent leaves a spouse, child or parent. In such event 'damages recovered therefor * * * shall not be liable for the payment of debts.' Code section 635.9, I.C.A. Accordingly it is usually held that a foreign administrator may maintain such an action as this since in doing so he acts as a mere trustee for particular beneficiaries, the cause of action is not an asset of the estate in the ordinary sense and resident creditors of decedent are in no way prejudiced.

In support of our holding see Knight v. Moline, E. M. & W. R. Co., supra, 160 Iowa 160, 140 N.W. 839, and citations; Janes v. Sackman Bros. Co., 2 Cir., 177 F.2d 928, 933; Wallan v. Rankin, 9 Cir., 173 F.2d 488, 493; Ghilain v. Couture, supra, 84 N.H. 48, 146 A. 395, 65 A.L.R. 553, and Annotation 563; Wiener v. Specific Pharmaceuticals, 298 N.Y. 346, 83 N.E.2d 673, and citations; Kerr v. Basham, 62 S.D. 301, 252 N.W. 853; 16 Am.Jur., Death, §§ 265, 266. See also Cooper v. American Airlines, 2 Cir., 149 F.2d 355, 162 A.L.R. 318; 25 C.J.S., Death, § 58b.

We approve this statement from Wiener v. Specific Pharmaceuticals, supra, at page 675 of 83 N.E.2d: 'The rule barring foreign administrators from our courts is just and reasonable only if applied in cases, first, where there are domestic creditors, and second, where the foreign administrator sues to recover a fund in which such creditors may share.'

Since the fatal collision occurred in Iowa our law governs the right of action for death. Restatement, Conflict of Laws, § 391. And see authorities supra. Neither Code section 635.9, I.C.A. nor any other statute requires such an action as this to be brought by an administrator appointed in Iowa. Nor does any principle of state policy so demand where a spouse, child or parent survives. In enacting section 635.9, as applied to a case where a spouse, child or parent survives, the legislature could not have been influenced by a general rule which has its justification in the protection of resident creditors. See Ghilain v. Couture, supra, and citations; Kerr v. Basham, supra.

It is true plaintiff's petition does not allege Paul is survived by a wife, child or parent and does allege his estate has been damaged in the sum of $25,000. But neither of these facts forms any basis for the motion to dismiss or for defendant Hocker's argument here. The motion is based solely on the ground plaintiff was not the appointed and qualified ancillary administrator in Iowa when suit was started.

The ruling on the motion to dismiss will not be upheld here on a ground not asserted in the trial court. Middle States Utilities Co. v. City of Osceola, 231 Iowa 462, 467, 1 N.W.2d 643, 646; Phinney v. Montgomery, 218 Iowa 1240, 1246, 1247 257 N.W. 208, and citations; Buser v. City of Cedar Rapids, 115 Iowa 683, 686, 87 N.W. 404; Wilson v. Palo Alto County, 65 Iowa 18, 22, 23, 21 N.W. 175; Kendig v. Overhulser, 58 Iowa 195, 12 N.W. 264. No opinion is expressed at to whether the motion to dismiss should have been sustained if additional grounds had been urged in support of it.

Further, counsel for Hocker have not denied plaintiff's assertion in both written and oral argument that under section 635.9 any recovery would not be subject to decedent's debts nor have they attempted to meet the argument that his appointment and qualification as administrator in Wisconsin entitled plaintiff to bring this action.

We feel, therefore, we may assume any recovery in this action would not be subject to the claims of Paul's creditors. Accordingly we hold, under the authorities heretofore cited, plaintiff could maintain this action as the Wisconsin administrator.

II. We also think plaintiff was entitled to maintain this suit as ancillary administrator in Iowa even though he did not qualify as such by filing oath and bond until March 5 and his appointment may not have been complete until then. It appears from the motion to dismiss and is admitted he was then the duly appointed and qualified administrator in Iowa. This was less than five weeks after the action was started and seven days before the motion to dismiss was filed.

Plaintiff was at all times the domiciliary administrator in Wisconsin. As such he was entitled to apply for ancillary administration in Iowa. Code section 633.50, I.C.A.; Knight v. Moline, E. M. & W. R. Co., supra, 160 Iowa 160, 164, 140 N.W. 839. However, his appointment as ancillary administrator here added nothing to his legal title to the claim in question. Defendant Hocker could make his defense to this action as well as to another that might be commenced the next day. No one was prejudiced by plaintiff's delay in qualifying as ancillary administrator. Since he was duly appointed and qualified before the motion to dismiss was filed it was not material whether his appointment was complete or he was qualified when suit was started.

These views find support in Wells v. Stomback, 59 Iowa 376, 13 N.W. 339; Myers v. Chicago, B. & Q. R. Co., 152 Iowa 330, 332, 131 N.W. 770, 771 ('Had the original plaintiff been substituted as administrator of the estate of decedent, there could be no doubt of the propriety of the ruling permitting this to be done, * * *.'); Brandenburg v. Carmichael, 192 Iowa 694, 185 N.W. 486; Leahy v. Haworth, 8 Cir., 141 F. 850, 853, 4 L.R.A.,N.S., 657, and citations; Hodges v. Kimball, 4 Cir., 91 F. 845, and citations; Gould v. Suburban Gas & E. L. Co., D.C. Mass., 243 F. 930; Dodge v....