Jacobs' Adm'r v. Louisville & N. R. R. Co.

• Decision Date: 01 October 1874
• Citation: 73 Ky. 263
• Parties: Jacobs's adm'r v. Louisville & Nashville R. R. Co.
• Court: Kentucky Court of Appeals

73 Ky. 263

Jacobs's adm'r v. Louisville & Nashville R. R. Co.

Court of Appeals of Kentucky.

October 1, 1874

APPEAL FROM HARDIN CIRCUIT COURT.

BROWN &amp MURRAY, VERTRUS & WILSON, For Appellant,

CITED

Sneed's Rep. 262, Duncan v. Finnyhorn and wife.

Shearman and Redfield on Negligence, secs. 16-46.

Hardin's Reports, 586, Taylor v. Giger.

Civil Code, sections 369, 119, 370.

Hilliard on Torts, pp. 442, 445.

Newman on Pleading, pp. 261, 410.

1 Bibb, 248, Worford v. Isbell.

4 Littell, 118, Bell v. Howard.

2 Met. 558, Letton v. Young.

1 Marsh. 591, Payne v. Brittenham.

4 Littell, 161, Jouitt, & c. v. Lewis's adm'r.

3 Dana, 493, Board v. Head.

2 Met. 146, Chiles v. Drake.

5 Texas, 141, Graham v. Rodes.

3 Met. 313, Bowler v. Lane.

8 Bush, 9, Hyatt v. James's adm'r.

7 Dana, 479, Singleton v. Cogar.

2 Bibb, 591, North v. Cates.

4 Bibb, 92, Bacon v. Brown.

4 Bibb, 272, Craig v. Elliott.

1 Marsh. 431, Riley v. Nugent.

2 Marsh. 365, Respass v. Parmer.

8 Dana, 320, Singleton's will.

7 Dana, 348, Fletcher's adm'r v. Sanders and Weir.

9 Dana, 103, Peebles v. Watts.

2 Chitty's Pleading, 650. 3 Bibb, 34, Colyer v. Huff.

2 Marsh. 365. 2 Met. 122, 560.

3 Mon. 455. 4 Littell, 118.

3 Dana, 382. 36 Miss. 226.

7 B. Mon. 17. 45 Mo. 255.

6 J. J. Marsh. 582. 59 Penn. St. 259.

4 Dana, 81. 13 B. Mon. 309.

16 B. Mon. 583, Kountz v. Brown.

17 B. Mon. 156, McClain v. Esham.

33 N.J. 434, N.J. Ex. Co. v. Nichols.

14 Minn. 81, Griggs v. Flakestein.

24 Wis. 618, Kavanaugh v. Janesville.

26 Ind. 370, Indianapolis, & c. R. R. Co. v. McClure.

38 Ill. 482, Chicago, & c. R. R. Co. v. Triplett.

40 N.Y. 9 and 34, As to signals.

18 B. Mon. 34,Commonwealth v. Graves.

C. G. WINTERSMITH, J. PROCTOR KNOTT, For Appellee,

CITED

Shearman and Redfield on Negligence, secs. 40, 43-48

Code of Practice, sections 18, 19, 28, 519.

Sneed's Rep. 321, Martin v. McKinney.

Revised Statutes, chap. 106, sec. 27.

Revised Statutes, chap. 37, art. 2, sec. 1.

Revised Statutes, 1 Stanton, 338, 339.

Littell's S. C. 303, Ormsby v. Lynch.

Constitution of Kentucky, art. 11, sec. 37.

Cooley's Constitutional Limitations, p. 406.

1 M. & B. Statutes, 504, 514, 517, 518.

5 Mon. 583, Pawling v. Speed's ex'r.

2 Met. 306, Thumb v. Gresham.

6 Dana, 283,Freeman v. Strong.

2 Bush, 46, Small v. Small.

4 Bush, 211,Chaudet v. Stone.

3 Littell, 332, Banks v. Fowler.

2 Littell, 256, Lex. Man. Co. v. Dorr.

2 Met. 168, L. & O. T. P. Co. v. Ballard.

3 Met. 566, Johnson v. Higgins.

2 Met. 149, Chiles v. Drake.

2 Met. 221, Phillips v. Cov. & Cin. Bridge Co.

1 Bush, 146, Gibson v. Belcher.

3 Met. 257, Hedger v. Rennaker.

8 Bush, 111, Smith v. Commonwealth and Cochran.

8 Bush, 352, O'Bannon v. L., C. & L. R. R. Co.

8 Bush, 453, McReynolds v. Smallhouse.

2 Duvall, 478, O'Donoghue v. Akin.

8 T. R. 181, Rex v. The Inhabitants of Chelvington.

4 Ellis & Bl. 524, Regina v. The Inhabitants of St. George's.

6 Wheat. 119, Thatcher v. Powell.

9 Wheat. 541, Walker v. Turner.

1 Peters' C. C. R. 30, Kemp v. Kennedy.

3 Jones, 54, Harshaw v. Taylor.

5 Harris & Johns. 42, Wicks v. Caulk.

1 Bibb, 496, Lawless v. Rees.

1 Bibb, 557, Abney v. Barnett.

6 Dana, 19, Case,& c. v. Woolley.

7 Dana, 479,Singleton v. Cogar.

9 Dana, 102, Peebles v. Watts's adm'r.

9 Bush, 728,L., C. & L. R. R. Co. v. Case's adm'r.

4 Bush, 593, Ky. Cen. R. R. Co. v. Dills.

4 Bush, 509, L. & N. R. R. Co. v. Robinson.

6 Bush, 574, L. & N. R. R. Co. v. Filbern's adm'x.

17 B. Mon. 632, Barnes v. Edwards.

13 B. Mon. 195, McChord v. Fisher's heirs.

26 Mo. 66, State v. Metger.

27 Barbour, 528-542.

33 Barbour, 430. 7 Bush, 236.

25 Barbour, 603. 21 Barbour, 339.

27 Barbour, 222. 53 Barbour, 339.

OPINION

LINDSAY JUDGE:

Presley Jacobs, who styles himself administrator of James W. Jacobs, deceased, sued the Louisville & Nashville Railroad Company to recover damages for the alleged careless, negligent, wrongful, and unlawful killing of his intestate.

A trial was had in the Larue Circuit Court, resulting in a judgment for the plaintiff for one hundred and fifty thousand dollars in damages. A new trial was awarded, and upon the second trial arose the question that will be first considered.

The railroad company denies that the plaintiff is the administrator of the intestate. In support of the averment to the effect that he is such personal representative, appellant offered to read to the jury the following order of the Hardin County Court:

" HARDIN COUNTY COURT, August 9, 1866.

On motion of Presley Jacobs, who took the oath required by law and executed bond, with John S. Cradler his surety, the administration of the estate of James W. Jacobs, deceased, is granted to him according to law."

The appellee objected to the reading of this order, upon the ground that it is void upon its face, because it sets out none of the facts necessary to give the Hardin County Court jurisdiction. The court sustained the objection; and appellant then offered to read another copy, differing from the first only in the fact that it showed that the term held August 9, 1866, was a special or called term of the court. Objection was also sustained to the reading of this copy, and the result was an instruction to the jury to find for the defendant.

Section 1, article 2, chapter 37, of the Revised Statutes provided, " When any person shall die intestate that court shall have jurisdiction to grant administration on his estate that would have had jurisdiction to grant a certificate of his will had he died testate."

The 27th section of chapter 106 provided that " wills shall be proven before and admitted to record by the county court of the county of the testator's residence. If he had no known place of residence in this state, and land is devised, then in the county where the land or the greater part thereof lies. If no land is d??ised, then in the county wherein he died, or that wherein his estate or the greater part thereof shall lie, or where there may be any debt or demand owing to him."

The Civil Code of Practice recognized and continued in force these provisions. (Section 28.)

It is manifest that, except upon one of the contingencies mentioned in the section quoted from the chapter of the Revised Statutes last referred to, the County Court of Hardin County had no jurisdiction to grant the administration. Is it necessary, however, that the fact or facts upon which the jurisdiction depends shall appear upon the face of the order?

It is maintained with zeal and earnestness that county courts are courts of limited and special jurisdiction, and that nothing shall be presumed to be within their jurisdiction but that which is expressly alleged. In other words, that the facts which give jurisdiction must appear in order to show that the proceedings were coram judice.

The radical error of this position is the assumption that in matters of probate, and in granting administration, county courts are courts of limited and special jurisdiction. In such matters their jurisdiction is not only general but exclusive. Under the laws of this state no other than a county court can probate a will or grant letters of administration; and in every instance in which there is a will to be proved, or a case of intestacy in which the intestate leaves property of any character or description in this state, some one of its county courts may rightfully assume jurisdiction.

There is a marked distinction between a court having general and exclusive jurisdiction over a limited number of subjects and a court having no jurisdiction over certain subjects except in cases in which certain essential and indispensable facts shall exist. In the latter case the rule that the facts conferring the jurisdiction must appear in the record of the proceedings applies to all courts, circuit as well as county.

The rule does not grow out of nor depend upon the fact that the court has jurisdiction of only a limited number of subjects, but that it has not full and complete jurisdiction of the subject-matter about which it assumes to act.

If the jurisdiction over the subject-matter is complete and unlimited, the action of the court will always be taken to be within its authority and jurisdiction, unless the contrary appears.

The cases cited and relied on by counsel harmonize with this view. The cases of Lawless v. Rees (1 Bibb, 496) and Abney v. Barnett (ibid. 557) were before this court by appeal, and in neither case was it necessary to declare the action of the county court void. Its judgments were reversed; but as they were not collaterally questioned, it by no means follows from the reversals that in a proper state of case this court would not have held them prima facie valid.

The cases of Freeman v. Strong (6 Dana, 283) and Chaudet v. Stone (4 Bush, 210), instead of conflicting, are in accord with the doctrine announced. In the first case it was held that as " the jurisdiction of the county court over orphan and poor free children, colored and white, is limited and special, every order binding a child as an apprentice should exhibit the facts required by law for giving jurisdiction."

So in the case of Case, & c. v. Woolley (6 Dana, 22) it was because the jurisdiction of the District Court of Louisiana to enforce the collection of debts was limited to certain specified classes, instead of being general and embracing all debts, that this court intimated that it would treat its judgments as void where the record failed to show that it had cognizance of the claims upon which it had adjudicated.

There is no case in which this court has held...