Hall's Adm'R v. L. & N. R. R. Co.
| Decision Date | 15 December 1897 |
| Citation | 102 Ky. 480 |
| Parties | Hall's Adm'r v. L. & N. R. R. Co. |
| Court | Kentucky Court of Appeals |
APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION.
B. F. PROCTOR AND O'NEAL & PRYOR FOR APPELLANT.
LYTTLETON COOKE, FOR APPELLEE.
Suit was brought by appellant as administrator of James Hall for damages for the negligent killing of its intestate in Sumner county, Tennessee, the petition being based upon a statute of that State giving a right of action for such killing, as well as for the pain and suffering endured before the intestate's death. A special demurrer to the petition as amended was sustained, the ground for the demurrer being stated to be because it appeared from the petition that the court had no jurisdiction, the petition showing affirmatively that plaintiff's intestate at the time of his death, and previous thereto, resided in Tennessee; that he died in Tennessee; that the negligence by which he lost his life occurred in Tennessee that the cause of action was given by a Tennessee statute, and no similar cause of action is given by any Kentucky statute; and, furthermore, that it appeared from the petition that the defendant was operating its railroad in Tennessee, and that the intestate left no assets in Kentucky to be administered. The second ground stated for the special demurrer is that it appeared from the petition that the intestate left a widow, and the statute giving the cause of action gave the right of action therefor to the widow, and that it did not appear that she had ever waived her right of action, or consented that the appellant should qualify as administrator, and that the Jefferson County Court had no power to appoint an administrator, as the intestate left no assets in Kentucky to be administered.
The first question presented is whether the judgment of the county court is conclusive in this proceeding as to its jurisdiction to appoint the administrator, or whether its action on that behalf can be collaterally attacked in the manner in which it has been attempted in this case.
In Jacob's Adm'r v. L. & N. R. R. Co., 10 Bush, 271, it was held that "the proceedings of the county court in matters of probate and administration are not conclusive as to the jurisdiction of the court because such jurisdiction may be collaterally called in question where the proper averments are made; but in such cases the onus is upon the party raising the issue to show that want of jurisdiction."
We are of opinion that, where the pleading itself affirmatively shows facts which would deprive the county court of jurisdiction to grant administration, the question of want of jurisdiction in the county court might be raised by special demurrer, as has been done in this case. For if want of jurisdiction to appoint the administrator may be averred and proved by the defense, it necessarily follows that if the petition itself affirmatively shows such want of jurisdiction the question may be raised by special demurrer, pointing out the averments which take from the defense the burden of proving the lack of jurisdiction. This court has never, so far as we are informed, held that a county court had power to grant letters of administration upon a mere right of action given by such a statute as the one under consideration, where the decedent was not a resident of the State, left no assets to be administered in this State, or the injury had not been inflicted in this State.
In Bruce's Adm'r v. Cincinnati R. R. Co., 83 Ky., 174, the intestate was, at the time of his death, a resident of this State, and...
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