Maysville Street Railroad & Transfer Co. v. Marvin

• Decision Date: 02 October 1893
• Docket Number: 80.
• Citation: 59 F. 91
• Parties: MAYSVILLE STREET RAILROAD & TRANSFER CO. v. MARVIN. [1]
• Court: U.S. Court of Appeals — Sixth Circuit

59 F. 91

MAYSVILLE STREET RAILROAD & TRANSFER CO. v. MARVIN. ^[1]

No. 80.

United States Court of Appeals, Sixth Circuit.

October 2, 1893

Statement by LURTON, Circuit Judge:

The deceased, Marion Wilson, was killed at Maysville, Ky., by being run over by a street car operated by one of the servants of the appellant company. He was a citizen and resident of the state of Ohio, in which state the appellee Marvin, was appointed administrator. The appellant company is a Kentucky corporation, exclusively engaged in operating a street-car line in the city of Maysville. The Ohio administrator brought this suit in the United States circuit court for the district of Kentucky, at Covington. There was a demurrer to the petition, on the ground that an Ohio administrator could not maintain a suit in the courts of Kentucky. This demurrer was overruled. Thereupon issue was joined, and a trial had by jury, resulting in a verdict and judgment against the railroad company.

A. M J. Cochran, (Wadsworth & Son and W. H. Mackoy, of counsel,) for plaintiff in error.

G Bambach, L. W. Robertson, and Wm. M. Tugman, for defendant in error.

Before BROWN, Circuit Justice, LURTON, Circuit Judge, and SWAN District Judge.

LURTON Circuit Judge, after stating the facts as above, .

The vital question involved in this appeal is as to the capacity of an administrator appointed in one state to recover damages for the death of his intestate in the courts and under a statute of another state. The capacity conferred by letters of administration is limited to the state within which they are granted, and, in the absence of a statute giving effect to a foreign appointment, no suit can be maintained in the courts of another state by such an administrator. This is the well-settled rule of the common law. Schouler, Ex'rs, § 164, and authorities cited.

In Noonan v. Bradley, 9 Wall. 400, Mr. Justice Field says:

'In the absence of any statute giving effect to the foreign appointment, all the authorities deny any efficiency 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.'

This rule is well recognized in the state of Kentucky, and the ground upon which it rests is well stated by Robertson, C. J., who, speaking for the court, said:

'It is a well-settled doctrine that letters of administration granted by one nation or state can have no operation per se within the jurisdiction of another nation or state, and that, therefore, such authority, being local, can, de jure, vest no right of suit in any other country than that in which it was granted; for, as it is the duty of every government to secure to its own citizens a just participation in the distribution of the assets within its protection and control, belonging to every deceased debtor of any of those citizens, wherever he may have lived or died, it is an established rule of international law that assets shall be administered under authority of the local sovereign. And, consequently, as every administrator must also account to the proper tribunal of the country from which he derived all his authority, he is responsible to no foreign government for the administration of assets received under the authority, and cannot either sue or be sued in his representative character in a foreign state.' Fletcher's Adm'r v. Sanders, 7 Dana, 348.

The conditions and circumstances under which nonresident administrators of nonresident decedents may sue in the courts of Kentucky are found in sections 43 and 44 of article 2 of chapter 39 of the General Statutes of Kentucky, which chapter is entitled 'Executors and Administrators.' These sections are as follows, to wit:

'Sec. 43. By giving bond with surety resident of the county in which action is brought, non-resident executors and administrators of persons, who at the time of their deaths were non-residents of the commonwealth, may prosecute actions for the recovery of debts due to such decedents. Sec. 44. In such actions the plaintiff's letters testamentary or of administration, granted by a proper tribunal properly authenticated must be filed; and no judgment shall be rendered until the plaintiff executes bond, with good surety resident of the county, to the commonwealth, conditioned to pay any debt due by his decedent to any resident of the state to the extent assets shall come to his hands. Actions may be brought on this bond for the use of any creditor of said decedent for three years after the date of such receipt of assets by such executor or administrator in the state, but not after.'

Foreign appointments are recognized, and authority given to such foreign administrators to sue in the instances named in the statute, and upon compliance with the conditions prescribed. To this extent, and to this extent only, do the statutes of Kentucky modify or alter the common law which limits the official character of an administrator to the state of his appointment. This statute, upon compliance with the provisions contained in section 44, empowers foreign executors and administrators to 'prosecute actions for the recovery of debts due to such decedent.'

Now, this action is obviously not brought to recover a 'debt' due to the decedent Wilson. A claim for a tort, not reduced to judgment, has never been held to be a debt. The supreme court of Massachusetts, in Gray v. Bennett, 2 Metc. 526, in defining the legal meaning of the term 'debt,' said:

'The word 'debt' is of large import, including not only debts of record or judgment and debts by specialty, but also obligations arising under simple contracts, to a very wide extent, and, in its popular sense, includes all that is due to a man under any form of obligation or promise.'

A claim arising out of the official neglect of a county court clerk was held not to be a 'debt,' within the meaning of the statute authorizing an attachment for 'debt.' Dunlop v. Keith, 1 Leigh, 430.

A claim against a corporation for damages for the negligent loss of a steamboat was held not to be a 'debt,' within the meaning of an act making stockholders liable for all the 'existing debts' of the corporation. Cable v. McCune, 26 Mo. 371.

In Tribune Co. v. Reilly, 46 Mich. 459, 9 N.W. 492, it was held that a claim for damages sounding in tort is not a debt before it has been prosecuted to judgment.

In Zimmer v. Schleehauf, 115 Mass. 52, it was held that a claim for damages for a tort does not become a debt by verdict before judgment; but if a claim for a tortious killing could be said to be a 'debt,' within the meaning of this statute, yet it was never a 'debt due the decedent.' The cause of action arose only upon the death of the decedent, and as a consequence of his death. It was not a right of action belonging to the decedent, and surviving to his administrator. The statute gives the right of action to the representative. It is not a preservation of a right of action, but the creation of a totally new right of action.

Referring to the statute conferring this right of action, the supreme court of Kentucky, in Railroad Co. v. Case's Adm'r, 9 Bush, 728, said:

'The right of action allowed by the first section is not identical with those growing out of personal injuries, and which, under the tenth chapter of Revised Statutes, survive to the personal representative.'

See, also, Railroad Co. v. Sanders, 86 Ky. 263, 5 S.W. 563, where the third section of the same act is construed as conferring a new and original right of action in the persons authorized to sue.

It is clear, therefore, that this statute does not empower a foreign representative to sue in the courts of Kentucky for the death of his decedent.

But counsel contend that, under the act authorizing a suit for the wrongful death of another, this suit may be instituted by a foreign, as well as by a...