Harper v. Norfolk & W.R. Co.

• Decision Date: 05 November 1887
• Citation: 36 F. 102
• Parties: HARPER v. NORFOLK & W.R. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

36 F. 102

HARPER v. NORFOLK & W.R. CO.

United States Circuit Court, W.D. Virginia.

November 5, 1887

Daniel Trigg, for plaintiff.

Fulkerson & Page, for defendant.

PAUL J.

This is an action of trespass, brought by Isaac Harper, administrator of Anderson Harper, deceased, to recover damages of the defendant for causing the death of the plaintiff's intestate. The action is brought under the provisions of chapter 145, Code Va. 1873, which authorizes the administrator of the decedent to bring an action of this character; the statute requiring the action by the administrator, and in his name, and provides that the amount recovered of the defendant shall be for the benefit of the widow and children of the deceased, where there are such; if none, the recovery is assets in the hands of the administrator, to be disposed of according to law. The declaration alleges that the plaintiff is a citizen of the state of Tennessee, and the defendant is a resident of the state of Virginia. The defendant files a plea to the jurisdiction of this court, on the ground 'that the said Anderson Harper, before and at his death, was a citizen of the state of Virginia, and that the said Anderson Harper left a widow and children surviving him, and that the said widow and children of the said Anderson Harper were, at the time of his death, and still are, citizens of the state of Virginia ' To this plea the plaintiff files a demurrer.

It is conceded that the plaintiff, the administrator of Anderson Harper, is a citizen of the state of Tennessee, and that the defendant is a resident of the state of Virginia; but the defendant contends that Isaac Harper, the administrator of Anderson Harper, is merely a nominal party to the record that the widow and children of Anderson Harper are the real parties in interest in this action; that the administrator is a mere instrument or conduit through whom the rights of the real plaintiffs are asserted. To sustain this position counsel for the defendant rely chiefly on Browne v Strode, 5 Cranch, 303; and on McNutt v. Bland, 2 How. 9. Browne v. Strode was an action in the name of the justices of the peace of a county in Virginia, on an executor's bond given to the justices, in accordance with the then statute, for the faithful performance of his duties, as an executor's bond is now given to the commonwealth. The action was for the benefit of an alien. McNutt v. Bland was an action in the name of the governor of Mississippi, on a sheriff's bond, given to the governor of Mississippi for the protection of any party who might be aggrieved by the conduct of the sheriff, and the action was for the benefit of a citizen of New York. The principle decided in these two cases is that a public officer, to whom an official bond is made payable, and whose name must be employed by the plaintiff in a controversy between citizens of different states, or an alien and a citizen, cannot be considered a party litigant. McNutt v. Bland, supra. Can it be said in the case at bar that the plaintiff, the administrator of Anderson Harper, is not a party litigant? He is in no sense a public officer. He is the actor in the controversy. The law compels him to be such. By statute the legal right to bring this action is vested in him. No other party can bring it, nor in any way be a party plaintiff to it. In Bonnafee v. Williams, 3 How. 574-577, the court says:

'Where the citizenship of the parties gives jurisdiction, and the legal right to sue is in the plaintiff, the court will not inquire into the residence of those who may have an equitable interest in the claim. A person having the legal right may sue at law in federal courts, without reference to the citizenship of those who may have the equitable interest.'

But apart from the legal right conferred by statute on the administrator to bring this action, is he in nowise a party in interest? Is he not liable, as the administrator, for the costs of this action, in the event of his failure to...