Hillyard v. National Dairy Products Corporation
| Decision Date | 03 April 1962 |
| Docket Number | No. 13552.,13552. |
| Citation | 301 F.2d 277 |
| Parties | Martin E. HILLYARD, Surviving Husband and Administrator of the Estate of Alma Mae Hillyard, Deceased, Plaintiff-Appellant, v. NATIONAL DAIRY PRODUCTS CORPORATION, Incorporated in Delaware, and Billy Frank Morris, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Terryl Fuller, Carmi, Ill., for appellant.
C. William Fechtig, Carmi, Ill., Ivan A. Elliott, Jr., Carmi, Ill., for appellees.
Before KNOCH, CASTLE and SWYGERT, Circuit Judges.
Plaintiff-appellant, Martin E. Hillyard, Surviving Husband and Administrator of the Estate of Alma Mae Hillyard, Deceased, has taken this appeal from summary judgment for the defendants-appellees, National Dairy Products Corporation, Incorporated in Delaware, and Billy Frank Morris, entered in the District Court on the ground that plaintiff-appellant had no standing in the District Court.
Mr. Hillyard brought action in the District Court under the Illinois Wrongful Death Statute to recover damages for the wrongful death of Alma Mae Hillyard on October 9, 1958, allegedly caused by the negligence of the defendants-appellees.
It is undisputed that Alma Mae Hillyard and Alma Mae McCormick are the same person. On petition of Raymond O. McCormick, described in the petition as the surviving husband of Alma Mae McCormick, letters of administration were issued March 6, 1959, by the County Court of White County, Illinois, to Herman Kittinger. The same wrongful death claim which is the basis for Mr. Hillyard's instant action was compromised and settled with approval of the White County Court and a release given to the defendants-appellees by Mr. Kittinger.
Mr. Hillyard contends that this issue of letters was void and of no effect because the White County Court lacked jurisdiction to issue letters of administration on Mr. McCormick's petition. Mr. Hillyard asserts that the marriage ceremony celebrated by Mr. McCormick and the decedent on November 20, 1955, was a nullity as Mr. McCormick's divorce from his previous wife was invalid. Thus, argues Mr. Hillyard, Mr. McCormick lacked the preference to be administrator or to nominate an administrator.
On December 19, 1957, without obtaining annulment or divorce with respect to the prior marriage to Mr. McCormick, the decedent married Mr. Hillyard.
On January 11, 1960, letters of administration on the decedent's estate were issued to Mr. Hillyard by the County Court of White County, Illinois. Mr. Hillyard asserts that the County Judge knew that Alma Mae Hillyard and Alma Mae McCormick were the same person when he issued letters to Mr. Hillyard, but nothing in the record supports that contention.
Mr. Hillyard cites Lemmons v. Sims, 1944, 326...
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