Newberry v. Robinson

• Decision Date: 20 December 1888
• Parties: NEWBERRY et al. v. ROBINSON et al.
• Court: U.S. District Court — Southern District of New York

36 F. 841

NEWBERRY et al. v. ROBINSON et al.

United States Circuit Court, S.D. New York.

December 20, 1888

This action is brought by Helen S. Newberry, as administratrix of John S. Newberry, deceased, and James McMillan, citizens of Michigan against Nelson Robinson, Frank C. Hollins, Walston H. Brown and Arthur J. Moulton, citizens of New York, and others alleged to be stockholders of the Lake Erie & Western Railway Company, to enforce a statutory liability created by the laws of Ohio, where the company was incorporated. Helen S Newberry was duly appointed administratrix by the probate court of Wayne county, Mich., and on the 2d of April, 1887, she, in her representative capacity, and James McMillan, recovered a judgment against the railway company, upon which execution was issued, and returned nulla bona. The bill prays for a discovery, and that the amounts found due from the various stockholders shall be applied in satisfaction of the judgment. The defendants above named and the railway company demur on the ground that Helen S. Newberry, as a foreign administratrix, has no standing or capacity to sue in this court, and on the further ground, assigned ore tenus at the argument, that the laws of Ohio creating the liability are not properly pleaded.

William W. Cook and Scribner & Hurd, for complainants.

E. C. Henderson and Cary & Whitridge, for defendants.

COXE J.,

(after stating the facts as above.) There is no doubt as to the general rule that an administrator cannot sue or be sued in his official capacity outside the limits of the state where he was appointed. Vaughan v. Northup, 15 Pet. 1. It is also well settled that a judgment in legal effect creates a new debt, and it is this debt, so evidenced, that the complainants are seeking to enforce. Unquestionably the complainant Newberry could have maintained an action against the railway company upon the judgment in this state, in her personal capacity. She could have so brought this action. The recovery of the judgment left the debt due to her, not as administratrix, but as an individual. Strike from the bill the allegations relating to her appointment as administratrix, etc., and it states a good cause of action. But these allegations are mere descriptio personae, and may be rejected as surplusage. This has frequently been done in analogous cases. Indeed, it is not easy to see how the complainants can obtain relief in any other form. Biddle v. Wilkins, 1 Pet. 686; Bonafous v. Walker, 2 Term R. 126; Wilkinson v. Culver, 23 Blatchf. 416, 25 F. 639;

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