Holmes v. Oregon & C.R. Co.

• Decision Date: 20 October 1881
• Citation: 9 F. 229
• Parties: HOLMES, Adm'r, etc., v. OREGON & CALIFORNIA R. CO.
• Court: U.S. District Court — District of Oregon

9 F. 229

HOLMES, Adm'r, etc., v. OREGON & CALIFORNIA R. CO.

United States Circuit Court, D. Oregon.

October 20, 1881

Sidney Dell, for libellant.

Dolph Bronaugh, Dolph, and Simon, for defendants.

SAWYER C. J.

On petition for rehearing. This is an appeal from a decree of the district court, in a suit to recover the sum of $4,900 under section 367 of the Oregon Civil Code, on account of the death of William A. Perkins, which occurred on November 16 1878, and which is alleged to have been caused by the negligence of the defendant while transporting said Perkins across the Wallamet river, at Portland, on its steam-ferry.

On the day named the deceased, then in his twenty-second year, in company with his mother, Mary A. Riggs, left Salem, Oregon for Portland, in the same state, intending to take the steamer at the latter place for California. In crossing the Wallamet river, on defendant's ferry, while landing at Portland, in Multnomah county, he fell overboard and was drowned. Soon after, said Mary A. Riggs, mother of the deceased, who was the next of kin and one of his heirs at law, and entitled to letters of administration under the laws of Oregon, (Or. Code, Sec. 1053,) filed a verified petition in the county court of Multnomah county, in which she styled herself Mary A. Riggs, of the city of Portland, and alleged that William A. Perkins died on November 16, 1878, in said Multnomah county and state of Oregon; 'that deceased was, at or immediately before his death, an inhabitant of said county;' that he left as assets the claim now sued upon, and no other property; that he left no creditors and no will; that she herself, the mother of said deceased, 'residing in said city of Portland,' two minor half-sisters, who 'reside with your petitioner in said city,' and a minor brother, residing in Cambridge, Vermont, were the only next of kin and heirs at law of the said intestate. The petition alleges all other jurisdictional and necessary facts and in said petition petitioner expressly renounced her right to administer upon the estate of deceased, and prayed the court to grant letters of administration to H. W. Davis, whom she alleged to be a fit and competent person to administer upon said estate. Acting upon said petition, the county court of Multnomah county, at a regular term of said court, on December 16, 1878, in an order made and entered in the records, in which it was recited that it was 'proved by the oath of the petitioner, Riggs, that the said William A. Perkins died on or about the sixteenth day of November, 1878, intestate, in the county of Multnomah and state of Oregon, being, at or immediately before his death, an inhabitant of said county,' etc., ordered that letters of administration on the estate of said intestate be issued to H. W. Davis; and letters were accordingly issued, and said Davis qualified and entered upon his duties as such administrator-- the proceedings being all in due form and regular upon their face. The said order and appointment are still unrevoked and in full force. Afterwards, on January 2, 1879, said Davis, as such administrator, brought an action at law against the defendant in the circuit court of Oregon, under section 637 of the Code of Oregon, for the identical cause of action alleged in the libel herein, in which issue was joined, and in which there was a trial by jury and a verdict in favor of the defendant, upon which verdict a final judgment was regularly entered on March 31, 1879. Said judgment was afterwards duly affirmed, on appeal, by the supreme court of Oregon, on August 11, 1879; and it still remains in full force and effect. Afterwards, Sidney Dell, who had been the attorney of Mrs. Riggs and said administrator, Davis, in the said prior proceedings, filed a petition, as petitioner, in the county court of Jackson county, Oregon, in which it is alleged 'that deceased was, at and immediately before his death, an inhabitant of said county of Jackson, in said state of Oregon;' that the same parties mentioned in the said prior petition were next of kin and heirs at law, etc.; that the said cause of action was the only estate of deceased; that there were no creditors; that more than 40 days had elapsed since the death of the intestate, and neither the widow, next of kin, nor any creditor had 'made application within that time to this court for letters of administration,' and praying that Leander Holmes be appointed administrator, whereupon said Holmes was appointed such administrator on September 17, 1879. Holmes, having qualified and received his letters, filed the libel in the state court. In addition to the issue taken on the case made by the libel, the defendant sets up as defences-- First, that libellant was never administrator; second, the prior adjudication in the state courts. At the hearing at the last term, although the court intimated that its impressions were against the libellant upon other points, the case was in fact decided upon the first point named--that the libellant was never administrator. This point has been thoroughly and ably argued and reargued, and I have given it that careful consideration which the importance of the case, and of the principle involved, deserve.

Whether the libellant is administrator depends upon the question whether the appointment of Davis, who was appointed by the county court of Multnomah county, and whose appointment, if legal, was still in force, was valid; and if not, then whether the intestate was in fact an inhabitant of Jackson county 'at or immediately before his death. ' As to the first point, the appointment of an administrator of an estate, while there is already a legal administrator, is void. The title to all the estate having already vested in the existing administrator for the purposes of administration, there is no estate in existence which can vest in the second appointee by virtue of his appointment. There is no subject-matter upon which he can act. Griffith v. Frazier, 8 Cranch, 9; Kane v. Paul, 14 Pet. 33; Haynes v. Meeks, 20 Cal. 288; Hamilton's Estate, 34 Cal. 464.

Was Davis, then, administrator at the time of libellant's appointment? The only ground of invalidity in the appointment of Davis, alleged and relied on by libellant, is that Perkins, 'at or immediately before his death,' was not in fact an inhabitant of Multnomah county, and the county court of that county had no jurisdiction to make the appointment, and it is insisted that the appointment, for that reason, is absolutely void.

The first point to be considered, then, is, is the question of inhabitancy open to examination on a collateral attack? Section 1, art. 7, of the constitution of Oregon, so far as it relates to county courts, is in the following language 'The judicial power of the court shall be vested in a supreme court, circuit court, and county courts, which shall be courts of record, having general jurisdiction, to be defined, limited, and regulated by law in accordance with this constitution. ' Gen. Laws Or. p. 87. Thus the people of Oregon, in their fundamental law, have relieved the county courts of the badge of inferiority, in the technical sense of that term, and made them courts of record,-- superior courts,-- and so far as the sanctity of their determinations, and the faith and credit due to their records are concerned, placed them upon a plane of equal dignity with the circuit and supreme courts. The general jurisdiction is conferred, and the character of the court fixed in the same section and in the same language as that which fixes the status of the other courts. The same effect must, therefore, be given to their determinations upon collateral attack, and the same inviolability attributed to their records as to the records of the circuit courts, or of the supreme court itself. This point is also settled by the decision of the supreme court of Oregon. Tustin v. Gaunt, 4 Or. 306. The character and dignity of the county court having been thus defined and established, section 12, of the same article of the constitution, provides that 'the county court shall have the jurisdiction pertaining to probate courts,' etc., thus conferring, in general terms, upon the county court general jurisdiction over the subject-matter of the estates of deceased persons. In regulating the exercise of this general jurisdiction thus conferred, in pursuance of the provisions of section 1, art. 7, of the constitution before cited, the statute provides that the administration of the estate of an intestate shall be granted by the county court when the intestate, 'at or immediately before his death, was an inhabitant of the county, in whatever place he may have died. ' Or. Civ. Code; Secs. 1051, 1052. Section 1060 provides, 'in an application * * * for the appointment of an administrator, the petition shall set forth the facts necessary to give the court jurisdiction. ' In this case, as has been seen, the facts were all properly set forth, and it was distinctly alleged in the petition that the intestate was, 'at or immediately before his death, an inhabitant of Multnomah county. ' This averment presented the issue as to inhabitancy to be determined, and the court did in fact determine and adjudge it upon evidence under oath, and its judgment on its face contains the recital: 'It being proved by the oath of the petitioner, Riggs, that the said William A. Perkins died on or about the sixteenth day of November, 1878, intestate, in the county of Multnomah and state of Oregon, being at or immediately before his death an inhabitant of said county. ' Can this determination be re-examined in a collateral proceeding, and if found erroneous treated as a nullity, on the ground that the court was without jurisdiction? To resolve this question it must be determined what...