Heath v. Smyther
Decision Date | 23 July 1937 |
Docket Number | No. 3885.,3885. |
Citation | 19 F. Supp. 1020 |
Court | U.S. District Court — District of South Carolina |
Parties | HEATH v. SMYTHER. |
Joe P. Lane, of Dillon, S. C., for plaintiff.
McEachin & Townsend and G. Badger Baker, all of Florence, S. C., for defendant.
The plaintiff bases her action on the willful, reckless, and negligent acts on the part of the defendant alleged in the complaint to have resulted in the death of intestate from peritonitis, in the city of Florence, S. C., on or about April 30, 1935.
Plaintiff alleges that she was appointed administratrix of the estate of deceased by the clerk of the superior court of Union county, North Carolina, her place of residence, and that suit is brought in pursuance of the statute of South Carolina; she being the beneficiary named in said statute. The necessary jurisdictional allegations are set out in the complaint.
The defendant interposed a demurrer to the complaint on the ground that plaintiff has no legal capacity to maintain the suit in this district, and that no letters of administration have been applied for or obtained from any South Carolina authority.
Section 412, Code of Laws of South Carolina 1932, provides that such action shall be brought by the executor or administrator of the deceased person, and shall be for the benefit of the mother in this case, deceased having been unmarried and the father having predeceased him.
It seems to be well settled in South Carolina, and elsewhere, that a foreign administrator cannot support a suit in another state, in either a state or federal court, unless by force of some law of the forum. There is no South Carolina statute extending the right.
In Dial v. Gary, 14 S.C. 573, 37 Am. Rep. 737, the court says:
The facts apparent from the discussion of the case in the Dial opinion, as in Merchants' National Bank et al. v. Tax Commission, 133 S.C. 406, 131 S.E. 142, that movable assets of the respective estates were involved, does not affect the principle announced; as restated in Stoddard v. Aiken, 57 S.C. 134, 35 S.E. 501, 502, and reaffirmed in Beidler et al. v. Tax Commission, 162 S.C. 447, 462, 160 S.E. 264:
So in Duchesse D'Auxy v. Porter et al. (C.C.) 41 F. 68, 69:
Judge Waddill's Fourth Circuit opinion in Hodges et al. v. Kimball et al. (C. C.A.) 91 F. 845, is cited as authority for the right to procure ancillary administration and thereby to maintain the suit. No such situation is presented here as was then considered. Nor am I inclined to permit the amendment and thereby raise other jurisdictional objections. The plaintiff may...
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Evans v. Morrow, 528
...109; In re Mayo's Mayo's Estate, 60 S.C. 401, 38 S.E. 634, 54 L.R.A. 660; Edgar v. Castello, 14 S.C. 20, 37 Am. Rep. 714; Heath v. Smyther, D.C., 19 F. Supp. 1020. For this reason, Evans conferred no power whatever upon the Superior Court of Mecklenburg County to try and determine the wrong......
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