Riggs v. Schneider's ex'R.
| Decision Date | 23 June 1939 |
| Citation | 279 Ky. 361 |
| Court | United States State Supreme Court — District of Kentucky |
| Parties | Riggs v. Schneider's Ex'r. |
2. Abatement and Revival. — Generally, where defendant is before a court of actual service of process and dies pending the action, action cannot be revived against his foreign personal representative.
3. Executors and Administrators. — A "personal representative" of a decedent is only a trustee of decedent's estate, deriving his power and authority to manage and distribute such estate under law of deceased's domicile.
4. Automobiles. — The statute providing that by use of highway, nonresident motorist should be deemed to appoint secretary of state as his attorney for service of process in proceedings against him growing out of use of highway, does not make the secretary of state an agent for a nonresident motorist's personal representative, and hence action against nonresident motorist who was served by executing service on the secretary of state pursuant to statute could not be revived against foreign executor of nonresident motorist upon nonresident motorist's death during pendency of action (Ky. Stats., secs. 12-1 to 12-6; Civil Code of Practice, sec. 501).
Appeal from Kenton Circuit Court.
Rogers & Rogers for appellant.
Rouse & Price and Charles S. Adams for appellees.
Before Johnst Northcutt, Judge.
Affirming.
The appellant, Elsie Riggs, filed this action against Phillip Schneider, a resident of Ohio, alleging that he inflicted personal injuries upon her by the negligent operation of an automobile in Covington on October 25, 1936. Service of process was had upon the non-resident defendant by executing it on the Secretary of State pursuant to Sections 12-1 to 12-6, Kentucky Statutes, but before answer was filed the non-resident defendant died and Michael Schneider qualified in Ohio as his executor.
On March 2, 1938, the plaintiff filed a petition for revivor, alleging that Phillip Schneider died on July 9, 1937, by which she sought to revive the action against the foreign executor. Summons was issued on this petition for revivor to the sheriff of Franklin County and the return thereon was as follows:
"Executed this fourth day of March, 1938, upon the defendant, Michael Schneider, executor of Phillip Schneider, a non-resident of Kentucky, by delivering a true copy of the within summons together with attested copy of the petition to Charles D. Arnett, Secretary of State of Kentucky."
On March 9, 1938, the report of the Secretary of State was filed showing copy of the letter sent to Michael Schneider, executor in Ohio, and filing a return receipt card
The trial court was of the opinion that the action could not be revived against the foreign executor and sustained the motion to quash the summons and service of summons above mentioned. The plaintiff having indicated that no further steps would be taken, the petition was dismissed and this appeal follows.
We thus have presented for decision the question whether, in an action against a non-resident with service of process had pursuant to Sections 12-1 to 12-6, Kentucky Statutes, such action may be revived against the foreign personal representative of the non-resident defendant who dies pending the action.
It is contended for appellant that the statute providing for substituted service of process on the non-resident, when considered in connection with Section 501 of the Civil Code of Practice and the purpose of the Act, which was to relieve the injured person of the hardship of being required to follow the non-resident into a foreign state, indicates an intention on the part of the legislature to authorize a revivor of the action against a non-resident dying pending the action.
Section 501 of the Code provides that:
"Any party to the action * * * may file in the action a petition against the other parties, stating facts necessary to authorize a revivor, with a prayer therefor, upon which summons may be issued and served, or a warning order may be made under like restrictions and with the like effect as if issued or made upon original petition."
We agree with appellant that a construction should be adopted such as will fairly serve to accomplish the purpose of the Act, but we are not at liberty to adopt a construction in conflict with existing principles of law to accomplish an objective which the legislature did not see fit to manifest.
It seems to us that the proper solution of the question hinges on the right of revivor generally against a foreign executor of a non-resident. May an action against a non-resident who has actually been served with process in this State and dies subsequent to such service be revived against his foreign executor?...
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