Harber v. Kentucky Ridge Coal Co., 11230.

• Court: U.S. Court of Appeals — Sixth Circuit
• Writing for the Court: HICKS, , and ALLEN and McALLISTER, Circuit
• Citation: Harber v. Kentucky Ridge Coal Co., 188 F.2d 62 (6th Cir. 1951)
• Decision Date: 13 April 1951
• Docket Number: No. 11230.,11230.
• Parties: HARBER et al. v. KENTUCKY RIDGE COAL CO. et al.

188 F.2d 62 (1951)

HARBER et al. v. KENTUCKY RIDGE COAL CO. et al.

No. 11230.

United States Court of Appeals Sixth Circuit.

April 13, 1951.

Fritz Krueger, Somerset, Ky., (Robert R. Boone, Pineville, Ky., Claude P. Stephens, Prestonsburg, Ky., on the brief), for appellants.

James Sampson, Harlan, Ky. (W. R. Lay and E. B. Wilson, Pineville, Ky., James Sampson, Harlan, Ky., on the brief), for appellees.

Before HICKS, Chief Judge, and ALLEN and McALLISTER, Circuit Judges.

ALLEN, Circuit Judge.

The sole question presented in this appeal is whether under Kentucky law an administratrix who has been duly appointed in Kentucky may be removed without notice on the ground that she has changed her residence to another state, no prejudice being shown. The District Court held that the Kentucky statutes did not require such notice and that under the facts of this record the removal did not violate the constitutional guaranty of due process.

The case arises out of a previous controversy, Carlson v. Asher Coal Mining Co., 6 Cir., 172 F.2d 243, in which this court held that the appellants' mother, Mrs. Bettie Hoskins, who died September 10, 1939, was the owner of a 90-acre tract of coal land from which the Asher Coal Mining Company, one of the appellees herein, has taken coal for a number of years under claim of title to the property.

Appellants, who claim to be the only heirs of Bettie L. Hoskins, in their individual capacities filed a complaint herein for willful trespass and removal of some 35,000 tons of coal, most of which appears to have been taken prior to the death of Mrs. Hoskins. By agreement of parties, appellants amended the complaint, adding Grace Monroe Harber, administratrix of the estate of Bettie Hoskins, as party plaintiff. Mrs. Harber immediately filed an intervening petition, adopting the principal allegations of the complaint. The intervening petition alleged that the intervening complainant "is domiciled in, and a citizen of, Chicago, Cook County, Illinois." Motion to dismiss was then filed, upon the ground that Mrs. Harber had forfeited her right to act as administratrix by removal from the state of Kentucky. The motion referred to and incorporated an order of the county court of Bell County, Kentucky, entered October 13, 1948, which removed Mrs. Harber as administratrix of the estate of Bettie Hoskins, effective October 1, 1946. This order stated in effect that since Mrs. Harber was absent from and a nonresident of Kentucky, it was evident "that an effort to serve notice on her would be futile." Notice was not served, and appellants contend that the order of removal was therefore void.

The District Court, 85 F.Supp. 233, held that the Kentucky statute requires no notice prior to removal; that the administratrix was not injured by the removal, and was not qualified to maintain the suit; and gave judgment for $48.00 in favor of the appellants on their individual claims. It dismissed the action as to the coal mined during the lifetime of Bettie Hoskins without prejudice to the right of a properly qualified party to sue. Appellants in this court renew their contention that the order of removal was void for lack of notice.

The pertinent Kentucky statute is § 395.160, which provides "If a personal representative resides out of the state * * * the county court shall remove him * * *." The section contains no provision for notice before the entry of an order of removal; but appellants contend that under Kentucky decisions notice to the administratrix was a jurisdictional prerequisite. They rely upon ...