Jordan v. Chi. & N. W. Ry. Co.

• Decision Date: 18 October 1905
• Citation: 104 N.W. 803,125 Wis. 581
• Court: Wisconsin Supreme Court
• Parties: JORDAN v. CHICAGO & N. W. RY. CO.

125 Wis. 581

104 N.W. 803

JORDAN

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

Oct. 3, 1905.

Separate Opinion, Oct. 18, 1905.

Appeal from Circuit Court, Kenosha County; E. B. Belden, Judge.

Action by Henry F. Jordan, administrator, against the Chicago & Northwestern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

It is conceded that the plaintiff's intestate was killed in the county of Kenosha, January 23, 1904, while in the employ of the defendant as a section laborer. January 26, 1904, the plaintiff filed his verified petition in the county court of that county, wherein he represented, in effect, that he was the public administrator of that county; that the deceased died in the town of Pleasant Prairie, in that county, January 23, 1904, intestate; that he died possesed of certain personal property not exceeding $5,000, consisting of a claim for damages against the defendant for negligently causing his death and for wages due him from the defendant for work and labor performed by him for the defendant, and debts due and unpaid to an amount unknown to the petitioner; that the deceased had left him surviving a widow and three children, whose Christian names and ages were unknown to the petitioner, and who were then in Italy or on their way to the United States; that, except as above stated, no person under 21 years of age or otherwise incapable of prosecuting or defending such action had any interest in the subject-matter therein or any rights in respect thereto which might be affected by the order entered thereon; that at the time of his death the deceased was an inhabitant of Kenosha county; and the petition prayed that letters of administration be issued to the plaintiff or some other suitable person. Upon such petition the Kenosha county court, on February 2, 1904, issued letters of administration to the plaintiff, reciting therein, in effect, that the deceased, late of Lake county, Ill., died intestate while living in Kenosha county, and having at the time of his death goods, chattels, credits, and estate in Kenosha county, by means whereof such letters were granted of all and singular the goods, chattels, credits, and estate, and also the auditing, allowing, and final discharging of the account of the deceased, and therefore the county court granted to the plaintiff, in effect, full power to administer and faithfully dispose of all and singular the goods, chattels, and estate of the deceased; to ask, demand, recover, and receive the debts which were due unto the deceased while living and at the time of his death properly belonging to him; to pay the debts of the deceased so far as there was property to do so; to make or cause to be made a full, true, and perfect inventory of all and singular the goods, chattels, credits, and estate of the deceased which had or should come to his possession or knowledge on or before May 2, 1904; and also to render a just and true account of such administration at or before the expiration of one year from February 2, 1904, and to obey all orders and decrees of the court, and also render a just and true account of such administration when thereunto lawfully required. February 20, 1904, the plaintiff, as such administrator, commenced this action and alleged in the complaint, in effect, that such killing was solely by reason of the wrongful act, default, negligence, and carelessness of the defendant; that the defendant was liable in damages therefor to the plaintiff as such representative; that the amount recovered be paid over to the widow and children of the deceased; that the deceased was a resident of Lake county, Ill., but was injured and died in Kenosha county, leaving a widow and three infant children and property and an estate to be administered therein, but leaving no widow or next of kin residing therein; that immediately upon such death the plaintiff as such public administrator became the only personal representative of the deceased; that January 26, 1904, he filed his petition for his appointment as such administrator and was appointed as stated; that, soon after, the defendant's claim agent offered the plaintiff $3,000 in compromise and settlement of said claim and cause of action, and the plaintiff accepted the same and thereby the cause of action was settled and compromised; that the plaintiff then presented to the defendant proper releases and discharge of the defendant from all further liability, but that the defendant did not pay the same, as its attorney expressed doubt of his authority to make such settlement--and prayed judgment for $3,000 and interest from February 2, 1904. March 2, 1904, the defendant answered in abatement of the action, by way of admissions, denials, and counterallegations to the effect that the deceased at the time of his death was a nonresident of Wisconsin, and not a citizen of the United States; that the widow and children were residents and citizens of Italy and nonresident aliens; that the deceased left no estate to be administered in Wisconsin, and no property or estate in Kenosha county; that no sufficient petition or application for administration had been made to the Kenosha county court; that no notice of the time or place of hearing, as required by section 3808 of the Revised Statutes of 1898, had been given; that the Kenosha county court had no jurisdiction to make such appointment, or any appointment, over the estate of the deceased, or to grant such letters of administration; and that all the proceedings of that court were null and void. The defendant further answered in bar of the action, by way of admissions, denials, and counter allegations to the effect that the deceased was instantly killed while in the employ of the defendant as a section laborer; that he left him surviving his widow and children, who were residents and citizens of Italy and nonresident aliens.

The cause having come on for trial May 2, 1904, it was stipulated by and between the parties in open court, in effect, that a trial by jury be waived, and the cause heard by the court; that, if the court should adjudge that the plaintiff was lawfully appointed administrator of the estate of the deceased and had the legal right to bring the action, judgment might thereupon be entered in favor of the plaintiff and against the defendant for $3,000, the defendant reserving the right to appeal from the judgment of the court, so far as the same related to the legality of the appointment of the plaintiff as such administrator; that the record of such appointment might be considered in evidence; and that the deceased was killed in Kenosha county, January 23, 1904, while in the defendant's employ as a section laborer, by being struck by a locomotive operated by the defendant. At the close of the trial the court made findings of fact to the effect that all the material allegations of the complaint were true; that the plaintiff was and is the administrator of the estate of the deceased and the personal representative thereof, and as such had the legal capacity to commence this action; that the appointment of the plaintiff as such administrator and the granting to him of letters of administration were and are valid, regular, and proper; that, the court having so found and decided, judgment should, pursuant to the stipulation, be given and entered in favor of the plaintiff for $3,000, together with costs of the action; that the deceased left property and an estate within Kenosha county to be administered therein; that the allegation of the answer that the deceased died instantly was not proven. And as conclusions of law the court found, in effect, that the plaintiff was entitled to a judgment against the defendant for $3,000, together with the costs of the action, and ordered judgment to be entered accordingly. From the judgment so entered the defendant brings this appeal.

Dodge, J., dissenting in part.

Edward M. Hyzer, for appellant.

B. J. Wellman and R. V. Baker (Norman L. Baker, of counsel), for respondent.

CASSODAY, C. J. (after stating the facts).

Under the stipulation entered into on the trial, the only question here for consideration is whether the plaintiff was lawfully appointed administrator of the estate of the deceased and had the legal right to bring this action. There is no claim that the plaintiff should have been appointed such administrator by reason of being one of the persons referred to in section 3807 of the Revised Statutes of 1898, nor that the notice prescribed in section 3808 of the Revised Statutes of 1898 was ever given. The plaintiff claims, and the trial court in effect found, that the appointment was properly and regularly made by the county court upon a sufficient petition under section 3819 of the Revised Statutes of 1898. Omitting words not applicable here, that section declares that, “when any person shall die intestate, leaving property in this state, but leaving no widow, surviving husband or next of kin, known to the county court, living therein, * * * the county court having jurisdiction of such estate, * * * shall, upon its own motion or upon the application of the public administrator, if such court shall deem necessary, grant administration of such estate * * * to the public administrator, and it shall thereupon be lawful for the public administrator to take possession of the property and effects of the intestate, * * * and protect and preserve the same and to proceed with the administration of such estate and with the care and management of the estate, * * * until administration * * * thereon shall, upon proper application of some person entitled to apply therefor, be granted to some other person. If such intestate * * * be a nonresident, administration * * * of his estate shall be granted to the public administrator of the county where the property may be found.” And then, after providing for the revocation of the appointment of such public administrator, the...