Lefebure v. Baker

• Decision Date: 08 December 1923
• Docket Number: 5348.
• Citation: 220 P. 1111,69 Mont. 193
• Parties: LEFEBURE ET AL. v. BAKER ET AL.
• Court: Montana Supreme Court

220 P. 1111

69 Mont. 193

LEFEBURE ET AL. v. BAKER ET AL.

No. 5348.

Supreme Court of Montana

December 8, 1923

Appeal from District Court, Richland County; Frank P. Leiper, Judge.

Action by Margaret M. Lefebure and others, as joint administrators of the estate of Henry Lefebure, against Paul K. Baker and others. Judgment for defendants, plaintiffs appeal. Affirmed.

F. J Matoushek, of Sidney, for appellants.

Carl L Brattin, of Sidney, and L. A. Foot, of Helena, for respondents.

HOLLOWAY J.

The complaint in this action contains substantially the following allegations: That on July 3, 1916, defendants executed and delivered to J. S. Green their negotiable promissory note, a copy of which is contained in the complaint; that on August 22, 1916, Green sold, assigned, and transferred the note to Henry Lefebure; that on August 7, 1917, Lefebure died intestate, a resident of the state of Iowa; that on August 10, 1917, the district court of Linn county, Iowa, appointed these plaintiffs joint administrators of the estate of Henry Lefebure, deceased; that they qualified and ever since have been and now are such joint administrators; "that ever since the said 10th day of August, 1917, the plaintiffs, as such administrators as aforesaid, have been and now are the lawful owners and holders of said note," no part of which has been paid, etc. To the complaint the defendants interposed a general demurrer which was overruled, and thereafter they answered.

The trial of the cause resulted in a judgment for the plaintiffs but upon motion of the defendants the court set the judgment aside and plaintiffs appealed from the order.

Primarily there is presented the question: Does the complaint state facts sufficient to support a judgment in favor of the plaintiffs? The answer to that inquiry, however, involves the consideration of two other questions, viz.: (1) May a foreign administrator, as such, maintain an action in the courts of this state, and (2) when the complaint discloses affirmatively that the plaintiff is a foreign administrator suing as such, is the objection to his right to prosecute the action waived by the failure of the defendant to demur specially?

1. It was a fundamental rule of the common law that the authority of an executor or administrator did not extend beyond the territorial limits of the state or country in which he was appointed. In re Gaynor, L. R. 1 P. & D. 723, 12 Eng. Rul. Cas. 3; In re Cowham's Estate, 220 Mich. 560, 190 N.W. 680; 1 Woerner's American Law of Administration, § 157; 11 R. C. L. p. 432, § 532; 24 C.J. p 1109, § 2671; Creswell v. Slack, 68 Iowa, 110, 26 N.W. 42; Braithwaite v. Harvey, 14 Mont. 208, 36 P. 38, 27 L. R. A. 101, 43 Am. St. Rep. 625. That rule has been reduced to statutory form in this state. Section 10563, R. C. 1921, declares:

"The effect of a judicial record of a sister state is the same in this state as in the state where it was made, except that it can only be enforced here by an action or special proceeding, and except, also, that the authority of a guardian or committee, or of an executor or administrator, does not extend beyond the jurisdiction of the government under which he was invested with his authority."

At the time of the enactment of this statute, the rule was recognized and enforced everywhere that unless effect was given by a local statute to a foreign appointment, a foreign executor or administrator, as such, could not maintain an action in the courts of any state other than the state in which he was appointed. In Noonan v. Bradley, 9 Wall. 394, 19 L.Ed. 757, the Supreme Court of the United States announced the rule as follows:

"In the absence of any statute giving effect to the foreign appointment, all the authorities deny any efficacy to the appointment outside of the territorial jurisdiction of the state within which it was granted. All hold that in the absence of such a statute no suit can be maintained by an administrator in his official capacity, except within the limits of the state from which he derives his authority. If he desires to prosecute a suit in another state he must first obtain a grant of administration therein in accordance with its laws."

To the same effect is the decision in Johnson v. Powers, 139 U.S. 156, 11 S.Ct. 525, 35 L.Ed. 112. See, also, 12 Cal. Juris. p. 239, § 972.

In 24 C.J. 1129, the same rule is stated in terms as follows:

"It is well settled that unless such right is given to him by statute, an executor or administrator cannot sue in his representative capacity in any state or country other than that in which his letters testamentary or administration were granted."

The numerous authorities supporting the text will be found cited in the notes.

The reason for the rule is stated aptly by the Supreme Court of North Carolina as follows:

"The rule of law which prevents an administrator appointed in another state from maintaining actions in his representative capacity in our courts, is founded in reason, justice and good policy. It is also founded on reasons of a technical character; but the great object of the rule is, to prevent the assets being drawn out of our state, to the injury and inconvenience of domestic creditors, our own citizens who may have contracted with the intestate, on the faith of those assets." Leake v. Gilchrist, 13 N.C. 73; Story on Conflict of Laws, § 512.

In view of this rule and the reason which underlies it, it must be held that by the enactment of section 10563, above, this state intended to deny access to its courts to any foreign executor or administrator who might seek to sue here in his representative capacity.

2. This action having been begun in the district court of Richland county, this state, the inquiry is next presented: How may the defendants raise the question of the right of plaintiffs as foreign administrators to maintain the action?

Plaintiffs insist that their disability is qualified and that the question relates solely to their legal capacity to sue, hence it could be raised only by a special demurrer (subdivision 2, § 9131, R. C. 1921), particularly pointing out wherein they have not the legal capacity to sue (section 9132), and since a special demurrer was not interposed in this instance, the objection was waived (section 9136). In the language of the Kentucky court, we think "such a view is entire misconception of the law."

An action at law implies by its very terms the existence of a person who has the right to bring the action (Brooks v. Boston & R. Co., 211 Mass. 277, 97 N.E. 760), and our statute (section 9067, R. C. 1921) provides, "Every action must be prosecuted in the name of the real party in interest." Hence it follows that an action cannot be maintained where it appears affirmatively from the complaint that the right of action is not in the party suing, but is in another. Haynes v. Ezell, 25 Miss. 242; Hunt v. Monroe, 32 Utah, 428, 91 P. 269, 11 L. R. A. (N. S.) 249.

A cause of action is the right which a party has to institute a judicial proceeding (Dillon v. Great N. Ry. Co., 38 Mont. 485, 100 P. 960), and to state a cause of action the plaintiff must disclose his interest in the subject-matter of the litigation; or, in other words, he must make it appear that he is the real party in interest.

It is elementary that the complaint must not only disclose a complete cause of action against the defendant, but it must also show a right of action in the plaintiff. 21 R. C. L. 482. This rule is stated in 31 Cyc. 102, as follows:

"It is incumbent upon plaintiff to allege sufficient facts to show that he is concerned with the cause of action averred and is the party who has suffered injury by reason of the acts of the defendant. In other words, it is not enough that he alleges a cause of action in favor of some one; he must show that it exits in favor of himself."

In 1 Sutherland's Code Pleading, Practice and Forms, § 223, the author says:

"To say that a complaint must show the plaintiff's right to a recovery and the defendant's liability to the plaintiff, is merely to say that the complaint must state facts sufficient to constitute a cause of action."

The real party in interest is the party whose right has been invaded, the person in whom is the right of action. and it follows that if a party has no right or interest in the subject-matter in controversy, either personal or fiduciary, he cannot state a cause of action concerning the matter. Baxter v. Baxter, 43 N. J. Eq. 82, 10 A. 814; Id., 44 N. J. Eq. 298, 18 A. 80; 1 C.J. 982.

The subject-matter of the present controversy is the alleged debt of the defendants represented by the note set forth in the complaint.

By our statute (section 10563, above) this state refuses to recognize the representative capacity of these plaintiffs. The allegations that they were appointed joint administrators of the estate of Henry Lefebure, deceased, by the district court of Linn county, Iowa; that they duly qualified and ever since have been such joint administrators--are of no more efficacy than would be the allegation that they had been duly appointed janitors of a particular building in Iowa by the owner thereof. The former allegations do not connect them with the subject-matter of this litigation any more than the latter allegation would.

If then, those allegations are without any legal efficiency, they might have been stricken upon motion, and to test the sufficiency of this complaint let us assume that the references to plaintiffs' representative capacity had been eliminated, and we would have left a complaint containing the following allegations only: That the defendants executed and delivered to J. S. Green the note in question, which is payable to the order of J. S. Green; that Green...