Phoenix Bridge Co. v. Castleberry

• Decision Date: 25 May 1904
• Docket Number: 499.
• Parties: PHOENIX BRIDGE CO. v. CASTLEBERRY.
• Court: U.S. Court of Appeals — Fourth Circuit

131 F. 175

PHOENIX BRIDGE CO. v. CASTLEBERRY.

No. 499.

United States Court of Appeals, Fourth Circuit.

May 25, 1904

J. S Muller, for plaintiff in error.

Stanyarne Wilson and J. Q. Marshall, for defendant in error.

Before GOFF, Circuit Judge, and BRAWLEY and McDOWELL, District Judges.

McDOWELL District Judge.

S. J Castleberry, an inhabitant of Spartanburg county, S.C., was on August 26, 1901, killed while employed in repairing a bridge. His wife, Effie Castleberry, petitioned the probate court of Richland county (in which the decedent had no estate and of which he was not a resident) for letters of administration on August 29, 1901. Citation was issued by that court on the same day, and letters of administration were granted Effie Castleberry on September 19, 1901. On August 30, 1901, Jas. H. Castleberry, the father of the decedent, filed his petition for letters of administration in the probate court of Spartanburg county. Citation issued the same day, and letters of administration were granted on September 16, 1901. On September 17, 1901, Jas. H Castleberry instituted the present action in a state court of South Carolina, which was removed to the federal court; and on September 21, 1901, Effie Castleberry, in the same state court, instituted her suit for the same cause of action against the plaintiff in error here. On December 4, 1902, Effie Castleberry applied for and obtained from the probate court of Richland county an order revoking the letters granted her by that court, in which order is a recital that the court had acted under a misapprehension, and had not had the right to issue letters of administration. And on December 9, 1902-- the day the trial of the case at bar was commenced in the federal Circuit Court, and just before it was commenced-- Effie Castleberry dismissed her action against the plaintiff in error here. The jury rendered a verdict for the plaintiff below and judgment was entered in accordance therewith.

It is contended for the plaintiff in error that the plaintiff below did not have title as administrator at the time of the institution of this action. This trial court decided this question against the plaintiff in error, and this is the first error assigned here. The statute law of South Carolina bearing on the question here presented is as follows (2 Code Div. Proc.):

'Sec. 37. Every judge of probate in his county shall have jurisdiction in all matters, testamentary and of administration, in business appertaining to minors and the allotment of dower, in cases of idiocy and lunacy, and of persons, non compotes mentis.'

'Sec. 39. The probate of the will and the granting of administration of the estate of any person deceased shall belong to the judge of probate for the county in which such person was last an inhabitant; but if such person was not an inhabitant of this state, the same shall belong to the judge of probate in any county in which the greater part of his or her estate may be.

'Sec. 40. All proceedings in relation to the settlement of the estate of any person deceased shall be had in the probate court of the county in which his will was proved, or administration of estate was granted.'

'Sec. 48. When any probate court shall have first taken cognizance of the settlement of the estate of a deceased person, such court shall have jurisdiction of the deposition (disposition) and settlement of all the personal estate of such deceased person to the exclusion of all other probate courts.'

'Sec. 49. The jurisdiction assumed by any probate court in any case, so far as it depends on the place of residence or the location of the estate, shall not be contested in any suit or proceeding whatever, except in an appeal from the probate court in the original case, or when the want of jurisdiction appears on the record.'

Rev.St. § 2027 (1901):

'The judge of probate shall grant administration in the following manner: After requiring the person or persons applying therefor to file a petition in writing, he shall issue a citation to the kindred or creditors of the intestate or person deceased, to show cause, if any they have, why administration shall not be granted to the person or persons applying therefor,' etc.

The alleged invalidity of the grant of letters of administration to the plaintiff below by the Spartanburg court is founded on section 48 of volume 2, Code Civ. Proc., supra.

It is a settled rule of law of the state courts of South Carolina that the first grant of letters of administration by a domestic probate court-- even when made by a court not having jurisdiction of the particular estate in question-- cannot be collaterally attacked. Petigru v. Ferguson, 6 Rich.Eq. 380. See, also, Turner v. Malone, 24 S.C. 398; Exparte Crafts, 28 S.C. 281, 5 S.E. 718. And this rule was followed by at least two of the subordinate federal courts in respect to a judgment of a probate court of the state in which these federal courts were sitting. Holmes v. Oregon & C.R. Co. (D.C.) 5 Fed. 523; Id.(C.C.) 9 F. 229. But we regard these opinions as overruled by the Supreme Court in later cases cited herein below. However, the courts of the state in which a federal court sits are not domestic courts quoad the federal court. The two courts are created by and exist under different governments. Swift v. Meyers (C.C.) 37 F. 43; Hekking v. Pfaff, 91 F. 60, 33 C.C.A. 328, 43 L.R.A. 618; Pennoyer v. Neff, 95 U.S. 732, 24 L.Ed. 565. Hence the federal court sitting in South Carolina should, on collateral attack, examine the question of the jurisdiction of a South Carolina state court which rendered a judgment relied on in such federal court. That there is a right of collateral attack for want of jurisdiction on a judgment of a court of another sovereignty is the rule prevailing in the majority of the states, not excepting South Carolina. McCreery v. Davis, 44 S.C. 195, 22 S.E. 178, 28 L.R.A. 655, 51 Am.St.Rep. 794; 2 Black on Judgments (2d Ed.) § 897; 12 Am.& Eng.Ency. (1st Ed.) 148 et seq. And beyond question this is the rule laid down by the Supreme Court of the United States, which we are required to follow. Thompson v. Whitman, 18 Wall. 457, 21 L.Ed. 897; Simmons v. Saul, 138 U.S. 448, 11 Sup.Ct. 369, 34 L.Ed. 1054; Guaranty Co. v. Railroad Co., 139 U.S. 147, 11 Sup.Ct. 512, 35 L.Ed. 116, and cases therein cited.

If the above-mentioned decisions in Petigru v. Ferguson, Ex parte Crafts, etc. could be considered as decisions of a matter of local law we should be bound to follow them. But the right of collateral attack on a judgment for want of jurisdiction is a question of general law. The plaintiff in error is relying on a common-law right. Galpin v. Page, 3 Sawy. 93, Fed.Cas. No. 5,206; Chicago v. Robbins, 2 Black, 419, 17 L.Ed. 298; Olcott v. Supervisors, 16 Wall. 689, 21 L.Ed. 382.

Again, if the South Carolina decisions above mentioned could be considered as construing the statute law of that state, we should be bound by them. But they were not so intended. They merely lay down the rule of common law prevailing in the South Carolina state courts, where it is proposed to collaterally attack in such courts a first grant of letters of administration made by a South Carolina probate court. So far as we are advised, the Supreme Court of South Carolina has never construed section 48 of the Code of Civil Procedure in respect to the question here made. It follows that we must now construe that statute.

In the opinion of the learned trial court it is said:

'In the case at bar the probate court of Spartanburg county was the first court which had taken cognizance of the estate of Castleberry. It first issued the letters granting plaintiff title, and when the Richland court acted there was nothing to act on. The petitions were ex parte. They decided nothing. The effective action was the grant.'

The language of section 48 is peculiar. If it had declared that the court in which the petition is first filed, or which first issued citation, should have exclusive jurisdiction, we should have a different question. But the language is 'the court which first takes cognizance of the settlement of the estate. ' Section 40 of the Code of Civil Procedure reads:

'All proceedings in relation to the settlement of the estate of any person deceased shall be had in the probate court of the county in which his will was proved, or administration of estate was granted.'

Apparently the theory of the Legislature was that the grant of letters is the first action of a court which may be considered as 'taking cognizance of the settlement' of an estate. The filing of the petition is ex parte. The issue of citation is a ministerial act in essence, made obligatory by section 2027 of the Revised Statutes, and does not involve the exercise of discretion, or any strictly judicial action. The first judicial act of the probate court is the grant of letters of administration. Such action is beyond doubt taking cognizance of the settlement of the estate. And it is the first act that can be properly so considered. We are of opinion that the jurisdiction of the Spartanburg court was not defeated by the subsequent grant of letters by the Richland court. It follows that the grant by the Richland court was made without jurisdiction, and was void ab initio. The plaintiff below, therefore, had title as administrator at the institution of this action.

Finding no error so far in the rulings of the trial court, we must now state the facts on which are based the remaining assignments of error. The Phoenix Bridge Company, a Pennsylvania corporation, had undertaken to make certain repairs of a railroad bridge over the Congaree river in South Carolina. The business of the company is divided into two departments, and this work...