Louisville & N. R. Co. v. Herb

• Decision Date: 01 December 1911
• Citation: 143 S.W. 1138
• Parties: LOUISVILLE & N. R. CO. v. HERB.
• Court: Tennessee Supreme Court

143 S.W. 1138

LOUISVILLE & N. R. CO. v. HERB.

Supreme Court of Tennessee.

December Term, 1911.

Certiorari to Court of Civil Appeals.

Petition by the Louisville & Nashville Railroad Company to revoke letters of administration granted to John B. Herb. From a judgment of the Court of Civil Appeals, overruling a demurrer to the petition, respondent brings certiorari. Writ denied.

John Bell Keeble, Ed T. Seay, and F. M. Bass, for petitioner. Pitts & McConnico, W. H. Washington, and J. G. Lackey, for respondent.

SHIELDS, C. J.

This case was begun by petition filed by the Louisville & Nashville Railroad Company in the county court of Davidson county to revoke letters of administration granted by that court to Jno. B. Herb upon the estate of Leo F. Herb, deceased, because it had no jurisdiction or authority to grant the same.

The allegations of the petition are that the Louisville & Nashville Railroad Company is a corporation created and organized under the laws of the state of Kentucky, having offices and agents in that state, and also in Davidson county, Tenn., and that Leo F. Herb, deceased, was, previous to August 10, 1910, a citizen and resident of Hopkins county, Ky., and there received injuries from which he there died; that on August 10, 1910, the defendant, John B. Herb, applied for and was granted letters of administration upon the estate of the said Leo F. Herb by the county court of Davidson county, and upon the same day, as such administrator, brought suit against the petitioner in the circuit court of Davidson county for $25,000 damages for the alleged wrongful and negligent killing of his intestate, which is pending in said court.

It is further alleged that Leo F. Herb at the time of his death, and when said letters of administration were applied for and granted, had no goods, chattels, assets, or any estate, real or personal, in Davidson county, nor any debtor or debtor of a debtor residing in said county, and that there was no suit to be brought, prosecuted, or defended in said county in which his estate was interested. It is charged upon these facts that the county court of Davidson county was without jurisdiction to grant letters of administration upon the estate of the decedent, and that the same should be recalled and revoked. The prayer is for this special relief and for general relief.

The defendant demurred to the petition upon several grounds, but only two questions are presented for determination. The first is whether the petitioner has such interest in the administration of the estate of the decedent as entitles it to maintain this proceeding; and the other is whether or not the right of action growing out of the alleged negligent killing is an asset of the estate of the decedent, in this state, sufficient to give the county court of Davidson county jurisdiction to appoint an administrator of his estate.

The demurrer was sustained by the county and the circuit courts, but was held bad by the Court of Civil Appeals, and the case is now before this court upon a petition for certiorari to review the action of the latter court.

We are of opinion that the petitioner has such interest in the administration of the estate of Leo F. Herb to entitle it to prosecute this proceeding. John B. Herb has sued the petitioner in the capacity of administrator of the estate of the decedent. If he was not lawfully appointed, the petitioner has the right, in a proper way, to show that fact, and thus defend itself from being harassed by a suit brought without authority of law, and from complications that may arise, should his letters of administration be revoked, upon the application of some one interested in the estate of the decedent as a creditor, next of kin, or otherwise.

The right of a plaintiff to maintain an action in the capacity he sues, or to sue in a particular court or jurisdiction, may always be challenged by a defendant, although he may be liable for the wrong sought to be redressed in a suit brought in a proper court, by the proper party. This proceeding is the only manner in which the validity of letters of administration can be called into question. The appointment by the county court is voidable only, and cannot be attacked collaterally. Railroad Co. v. Mahoney, 89 Tenn. 312, 15 S. W. 652; Franklin v. Franklin, 91 Tenn. 131, 18 S. W. 61; Reeves v. Hager, 101 Tenn. 712, 50 S. W. 760.

In support of the other question presented for the defendant, it is said that the right of action which the personal representative of Leo F. Herb has against the petitioner for the alleged unlawful killing of the decedent is assets or estate of the decedent, or a debt due decedent, within the meaning of our Code, § 2203, subsecs. 1 and 2, and that the action to recover the same is a suit in which his estate is interested, within the meaning of subsection 4 of said section, sufficient to confer upon the county court of Davidson county jurisdiction to grant letters of administration upon the estate of the decedent. We cannot agree to this contention.

The jurisdiction of the county courts of this state to appoint administrators upon the estates of citizens and residents of other states and foreign countries has been the subject of legislation, and can be exercised only in the cases provided by that legislation. It is to be found in Code, §§ 2203-2205 (Shannon's Ed. §§ 3935-3937). Section 2203 is in these words:

"Sec. 2203. Nonresident's Estate — Administration. — Letters testamentary or of administration may be granted upon the estate of a person who resided, at the time of his death, in some other state or territory of the Union, or in a foreign country, by the county court of any county in this state.

"(1) Where the deceased had any goods, chattels, or assets, or any estate, real or personal, at the time of his death, or where the same may be when said letters are applied for.

"(2) Where any debtor of the deceased resides.

"(3) Where any debtor of a debtor of the deceased resides, his debt being unpaid when the application is made.

"(4) Where any suit is to be brought, prosecuted, or defended, in which said estate is interested."

The other sections relate to suits in the chancery and Supreme Courts, and have no application to this case.

These sections were taken from Acts 1831, c. 24, and Acts 1841-42, c. 69, enacted at a time when the right of action for personal injuries abated or was extinguished by the death of the injured party, and they could not have been intended to include such claims for damages as assets of the estate of a decedent. We do not think such rights of action are assets or estate of a decedent within the meaning of the statutes. The action, if any, which the personal representative of Leo F. Herb has against the...