Holmes v. Oregon & C. Ry. Co.

• Citation: 5 F. 523
• Parties: HOLMES, Adm'r, v. OREGON & CALIFORNIA RY. CO. [1]
• Decision Date: 29 January 1881
• Court: U.S. District Court — District of Oregon

5 F. 523

HOLMES, Adm'r, v. OREGON & CALIFORNIA RY. CO. ^[1]

United States District Court, D. Oregon.

January 29, 1881

Sidney Dell, for libellant.

Cyrus A. Dolph and Joseph N. Dolph, for defendant.

DEADY D. J.

This suit is brought to recover the sum of $4,900, under section 367 of the Oregon Civil Code, on account of the death of William A. Perkins, the libellant's intestate, alleged to have been caused by the negligence of the defendant, on November 16, 1878, while transporting said Perkins across the Wallamet river at Portland, on its steam-ferry No. 1. The answer of the defendant, in addition to the allegations directly responsive to the libel and contesting the cause of suit therein stated, contains defensive allegations in the bar of the same, the equivalent of the pleas of ne unques administrator and a prior adjudication at law. These pleas are but different forms of the same defense, and the facts upon which they rest are as follows: In June, 1877, William A. Perkins, then in his twenty-second year, came to Jackson county, Oregon, via California, from his native state Vermont, with his mother and step-father, Michael Riggs where he remained until September 10, 1878, when the mother on account of alleged cruel treatment, left Riggs, taking with her three minor children an- the effects which belonged to her, and started for California, where she had a brother living, with the ultimate purpose of going back to Vermont to reside, where she had a son still older than the deceased. The deceased accompanied her, first disposing of a pre-emption claim on Applegate creek, upon which he and his mother had resided separate from Riggs for some months, and leaving nothing behind him.

At Roseburg they were detained by sickness and poverty until October 10, 1878, when they came to Salem, where for the want of means to pursue their journey they remained until November 16th, when, by aid of others, they started for California on the defendant's railway, and on the evening of the same day, while crossing the river at Portland, the defendant was drowned.

On December 2, 1878, the county court of Multnomah county, upon the proper petition of the mother of the deceased, styling herself 'Mary A. Riggs, of the city of Portland,' in which it was alleged 'that the deceased was, at or immediately before his death, an inhabitant of said county,' made an order appointing H. W. Davis administrator of the estate of said William A. Perkins, in which, among other things, it is alleged that, by 'the oath of the petitioner,' it was 'proved' that said Perkins died intestate in Multnomah county, Oregon, he 'being at or immediately before his death an inhabitant of said county,' which order and appointment are still in full force and effect; and said Davis, in pursuance thereof, duly qualified as such administrator, and on January 2, 1879, brought an action at law in the circuit court of the state for said county against the defendant, under section 367 aforesaid, for the identical cause of suit alleged in the libel herein, in which, on March 31st, said circuit court gave judgment that the plaintiff take nothing thereby, which judgment was, on August 11, 1879, duly affirmed by the supreme court of the state and still remains in full force and effect.

On September 17, 1879, the county court of Jackson county, Oregon, appointed the libellant administrator of the estate of said Perkins, and in pursuance thereof the libellant duly qualified as such administrator, and brought this suit to recover damages for the death of his intestate. Upon these facts the plea of a prior adjudication is not sustained; for although the action of Davis v. The O. & C. Ry. Co. was for the same cause as this, it was between different parties plaintiff, who were not privies. The Jackson county administrator is not the successor of the Multnomah one. On the contrary, he claims title to the estate of the deceased by a distinct and independent, if not an adverse grant. His suit proceeds upon the assumption that Davis was not the administrator, and that therefore his action to recover damages belonging to the estate of the deceased was a nullity and of no effect.

The defence that the libellant was 'not ever administrator' of the deceased, involves the inquiry: (1) Did the county court of Multnomah county have jurisdiction to grant the administration of the estate of the deceased to Davis when and as it did? (2) Can the decree of said court making said grant be attacked collaterally? The jurisdiction to grant letters of administration upon Perkins' estate was vested in the county court of the county of which the deceased, 'at or immediately before his death, was an inhabitant'-- 'in whatever place he may have died. ' Oregon Civ. Code, Secs. 1051, 1053.

And first, as to the fact-- of what county was the deceased 'an inhabitant' at or immediately before his death? In the consideration of this question counsel for the libellant assumes that habitation and domicile are in this case convertible terms, and that therefore a person is always an inhabitant of the place in which he has a domicile, and vice versa. But I do not think that the term 'inhabitant,' as used in the statute, is the equivalent of the technical term 'domicile.'

A habitation is a place of abode-- a place to dwell in; and an inhabitant of a place is one who has an actual residence there. But a person's domicile is a place where he may reside in fact, or for many purposes may be deemed to reside. Indeed, a person may have two domiciles at once; 'as, for example, if a foreigner, coming to this country, should establish two houses, one in New York and the other in New Orleans, and pass one half the year in each, he would, for most purposes, have two domiciles. ' Bouvier; Domicile.

A man's domicile, as the word implies, is his house, his home; and it may continue to be such for years, without being actually inhabited by him. But an inhabitant of a place is one who ordinarily is personally present there; not merely in itinere, but as a resident and dweller therein. Domicile, as a question of fact, is often one of great difficulty to determine. Yet, in contemplation of law, every one has a domicile somewhere, because upon it generally depends his personal status, rights, and duties, and the disposition of his property after his death. Abington v. North Bridgewater, 23 Pick. 176; Mitchell v. The U.S. 21 Wall. 351; Desmare v. The U.S. 93 U.S. 609. Furthermore, a person who, in contemplation of law, has a domicile, may, nevertheless, as a matter of fact, be a mere wanderer and not an inhabitant of any place.

Upon this view of the law, I dod not think that Perkins can be considered an inhabitant of Jackson county at the time of his death, nor, indeed, of any county in the state. As a matter of fact he had ceased to reside in Jackson county, and was journeying through the state of California. Therefore, the power to grant letters of administration upon his estate belonged to the court of the county, if any, of which he was an inhabitant immediately before his death. He was an inhabitant of Jackson county before his death, but I doubt if he was immediately before. Immediately means without anything intervening--the very opposite of mediately. In this statute it signifies that the administration shall be granted in the county of which the deceased was an inhabitant at or last before his death.

The six weeks immediately preceding his death Perkins lived in Marion county, and, although he did not intend to remain there permanently, but only until his mother could obtain the means to get away with, yet I am inclined to the opinion that that was be last county he was an inhabitant of before his death; if it was not, then Jackson county was. However that may be, I do not think Perkins was an inhabitant of Multnomah county at the time of his death, and therefore, as a matter of fact, the county court of that county was not authorized to grant letters of administration upon his estate. And this brings us to the considerations of the principal question-- can the decree of the county court granting the letters of administration to Davis be attacked collaterally?

By the constitution of the state (article 7, Secs. 1, 11, and 12) it is provided, in effect, that the county court shall be 'a court of record, having the general jurisdiction' 'pertaining tp probate courts,' to be limited by law; and by section 869 of the Civil Code it is declared that such court 'has the exclusive jurisdiction in the first instance, pertaining to a court of probate, to grant and revoke letters of administration.'

In Tustin v. Gaunt, 4 Oregon, 305, the supreme court of the state held that the county court, in exercising the jurisdiction pertaining to probate courts, is a court 'of superior jurisdiction, as contradistinguished from courts of inferior and limited jurisdiction;' and that its 'judgments and proceedings,' when questioned collaterally, are entitled to all the presumptions of law in favor of their legality that pertain to the judgments of superior courts.

In the case of a judgment of a superior court-- a court of record-- the law presumes that the court had jurisdiction unless the contrary appears; and in the courts of the same state it has usually been held that, unless the contrary appears from the record of the case, it cannot be shown at all; in other words, the validity of the judgment and the jurisdiciton of the court that pronounced it must be tried by the record alone. But the record of a judgment of a court of a state may be contradicted in the courts of a sister state or the United States, as to the facts necessary to give jurisdiction, and if it be shown that such facts did not exist, the record notwithstanding its...