Rogers v. Mellon

• Decision Date: 25 January 1927
• Citation: Rogers v. Mellon, 258 P. 166, 43 Idaho 466 (Idaho 1927)
• Parties: E. J. ROGERS, Administrator of the Estate of HARRY BARR, Deceased, Respondent, v. ANDREW MELLON, Director General of Railroads and Agent of the President, Appellant
• Court: Idaho Supreme Court

258 P. 166

43 Idaho 466

E. J. ROGERS, Administrator of the Estate of HARRY BARR, Deceased, Respondent, v. ANDREW MELLON, Director General of Railroads and Agent of the President, Appellant

Supreme Court of Idaho

January 25, 1927

PLEADING-ACTION BY ADMINISTRATOR-AMENDMENT OF COMPLAINT-ALLEGATION OF SUBSEQUENT APPOINTMENT IN ANOTHER COUNTY-EFFECT-PARTIES-SUBSTITUTION-ADMINISTRATOR PROPERLY APPOINTED AFTER COMMENCEMENT OF ACTION-EFFECT.

1. Plaintiff, who commenced action as administrator appointed by probate court of P. county, by amendment of complaint alleg- ing that subsequent to commencement of action he sought and received appointment as administrator from probate court of B. county, admitted that deceased died a resident of B. county, thus establishing the nullity of the P. county court's appointment and the incapacity of its appointee to institute the action, as under C. S., sec. 7438 only the court of the county of deceased resident could make the appointment.

2. Action brought by an administrator appointed by a court not having jurisdiction to appoint is a nullity and cannot be given life by injecting therein an administrator appointed by proper court subsequent to commencement of action.

APPEAL from the District Court of the Fifth Judicial District, for Power County. Hon. Ralph W. Adair, Judge.

Action for damages. Judgment for plaintiff. Reversed and remanded with directions to the trial court to dismiss the action.

Reversed and remanded, with directions. Costs to appellants.

Peterson & Coffin, for Respondent, cite no authorities on points decided.

Geo. H Smith, H. B. Thompson and J. H. McEvers, for Appellant.

Amendments making a complete substitution of parties plaintiff cannot be allowed. (Hallet v. Larcom, 5 Idaho 492, 51 P. 108; Vermont Loan & Trust Co. v. McGregor, 5 Idaho 510 51 P. 104; Dubbers v. Goux, 51 Cal. 153; James v. Davis, 209 Ala. 87, 95 So. 346; Clements v. Greenwell, 40 Mo.App. 589; Proprietors v. Yellow Jacket Silver Mining Co., 4 Nev. 40, 97 Am. Dec. 510; 11 Morr. Min. Rep. 175; Pelzer v. United Dredging Co., 200 A.D. 646, 193 N.Y.S. 676.)

The plaintiff is bound by his pleadings, and the implications of law arising therefrom. (Knowles v. New Sweden Irr. Dist., 16 Idaho 217, 101 P. 81; Powers v. Security Sav. & Trust Co., 38 Idaho 289, 222 P. 779; Harshbarger v. Eby, 28 Idaho 753, Ann. Cas. 1917C, 753, 156 P. 619; Horn v. Martinho, 7 Cal.App. 204, 94 P. 79; Nolan v. Barnes, 268 Ill. 515, 109 N.E. 316; Benton v. Dumbarton Realty Co., 161 Iowa 600, 143 N.W. 586; Hayward v. Grant, 13 Minn. 165 (Gil.) , 97 Am. Dec. 228; Taylor v. Nichols, 134 A.D. 783, 119 N.Y.S. 919.)

Inconsistent allegations will be disregarded by the courts. They are subject to a motion to strike. (C. S., sec. 6708; Patrick v. McManus, 14 Colo. 65, 20 Am. St. 253, 23 P. 90; State ex rel. Engelhard v. Weber, 96 Minn. 422, 113 Am. St. 630, 105 N.W. 490; Central of Georgia Ry. Co. v. Lawley, 33 Ga.App. 375, 126 S.E. 273.)

They are also subject to a demurrer. (Birmingham Ry., L. & P. Co. v. Nicholas, 181 Ala. 491, 61 So. 361; Williams v. Peninsular Grocery Co., 73 Fla. 937, 75 So. 517; Grand Trunk W. R. Co. v. City of South Bend, 174 Ind. 203, 89 N.E. 885, 91 N.E. 809, 36 L. R. A., N. S., 850; Louisville Gas & Electric Co. v. Nall, 178 Ky. 33, 198 S.W. 745; O'Brien v. St. Louis Transit Co., 212 Mo. 59, 110 S.W. 705; Syllabus, Todd v. Keator, 177 A.D. 112, 163 N.Y.S. 853.)

Where allegations are in the alternative, and one alternative fails to state a cause of action, they neutralize each other and leave nothing. They are subject to demurrer. (Knoor v. Reineke, 38 Idaho 658, 224 P. 84; 21 R. C. L., sec. 14, p. 451; Northern Ala. R. Co. v. Mitchell, 205 Ala. 448, 88 So. 558; Anderson v. Minneapolis, St. Paul & S. S. M. R. Co., 103 Minn. 224, 114 N.W. 1123, 14 L. R. A., N. S. 886; Casey Pure Milk Co. v. Booth Fisheries Co., 124 Minn. 117, 144 N.W. 450, 51 L. R. A., N. S., 640; Cohn v. Graber, 201 A.D. 264, 194 N.Y.S. 233.)

Where a complaint alleges that there are two administrators over the same estate, and endeavors to join them both as parties plaintiff, there is a misjoinder of parties plaintiff and of causes of action. This may be reached by demurrer. (C. S., sec. 6689; Beane v. Givens, 5 Idaho 774, 51 P. 987; Baker v. Hanson, 72 Mont. 22, 231 P. 902; Knepper v. Eggiman, 177 Ind. 56, 97 N.E. 161; Cohn v. Ottenheimer, 13 Ore. 220, 10 P. 20.)

Also the complaint becomes ambiguous, unintelligible and uncertain, and is subject to demurrer for that reason. (C. S., sec. 6689; Macurda v. Lewiston Journal Co., 104 Me. 554, 72 A. 490.)

Where an administrator, holding letters of administration over an estate, goes into another county, petitions and procures letters of administration over the same estate, he assumes two inconsistent impossible positions. He cannot serve two masters, and therefore the law will imply that he abandoned the former office. He is estopped to say that he did not. ( People v. Haas, 145 Ill.App. 283; State v. Anderson, 155 Iowa 271, 136 N.W. 128; Dyche v. Davis, 92 Kan. 971, 142 P. 264; State v. Smith, 145 N.C. 476, 59 S.E. 649; Johnson v. Baatz, 62 Mont. 344, 205 P. 212.)

The motion to require plaintiff to elect should have been allowed.

A suitor is not permitted to invoke the aid of the courts upon contradictory principles or theories based upon one and the same set of facts. (Sunderlin v. Warner, 42 Idaho 479, 246 P. 1.)

T. BAILEY LEE, J. Budge and Taylor, JJ., concur. GIVENS, J., Wm. E. Lee, C. J., Dissenting.

OPINION

T. BAILEY LEE, J.

This is an appeal from a judgment for damages awarded in favor of E. J. Rogers, as administrator of the estate of Harry Barr, deceased, against Andrew Mellon, Director General of Railroads and Agent of the President. The original complaint filed August 27, 1920, alleged that plaintiff was appointed administrator of the estate of the deceased on July 19, 1920, by the probate court of Power county, and that suit was by him instituted and maintained as such administrator.

Subsequently, plaintiff was permitted over defendant's objection to strike from the complaint paragraph 1 reciting such appointment, and amend by substituting therefor the following allegations:

"(1) That on the 19th day of July, 1920, the plaintiff herein was duly appointed administrator of the estate of Harry Barr, deceased, and thereupon, and on the 19th day of July, 1920, duly qualified by filing bond in the amount required by the probate court of Power county, Idaho, and on said last mentioned date took oath of office, and in all other respects duly qualified as such administrator, and upon the said last mentioned date duly entered upon the discharge of his duties as such administrator, and ever since said time has been, and now is, the duly appointed, qualified and acting administrator of the estate of Harry Barr, deceased; that on or about the 10th day of January, 1925, the probate court of Power county, by reason of the judge of said court feeling himself disqualified, by its order, duly made and entered, transferred the proceedings therein to the probate court of Bannock county, Idaho, and on said last mentioned date transmitted all of the records and files in said cause to the probate court of Bannock county, Idaho, and that the said proceedings are now pending in the said probate court of Bannock county, Idaho; that on or about the 31st day of December, 1924, a petition was duly filed in the probate court of Bannock county, Idaho, praying for the appointment of your petitioner as administrator of the estate of Harry Barr, deceased, for the reason that certain questions had been raised concerning the jurisdiction acquired by the probate court of Power county, Idaho, under the proceedings originally instituted therein as hereinbefore set forth, and such proceedings were had therein that on the 10th day of January, 1925, your petitioner was duly appointed administrator of the estate of Harry Barr, deceased, by the probate court of Bannock county, Idaho, and on the 12th day of January, 1925, he, the said plaintiff herein, duly qualified as such administrator under the appointment of the said probate court of Bannock county, Idaho, by filing his bond in the form required by law and in the sum ordered by the probate court, which said bond was duly approved upon said date, and by taking the usual administrator's oath, all of which is on file in the office of the probate court of Bannock county, Idaho, and that he, the said E. J. Rogers, is the duly appointed, qualified and acting administrator of the estate of Harry Barr, deceased, holding said office by virtue of the proceedings hereinbefore set forth and under the orders of the said probate court of Bannock county, Idaho; that this action is brought by the said plaintiff as administrator of the estate of the said Harry Barr, deceased, for and on behalf of said estate."

Defendant moved to strike from the amended complaint all the allegations relative to the appointment of plaintiff by the probate court of Power county on the grounds that it affirmatively appeared therein (1) that at the solicitation and request of the plaintiff and on evidence introduced and supplied by him, the probate court of Bannock county had found and decided that Barr was a resident of Bannock county at the time of his death; that the probate court of Power county had no jurisdiction, and that its order was null and void and that the findings of the probate court of Bannock county were res adjudicata; (2) that the plaintiff had abandoned the proceedings taken before the probate court of Power county and had by his action, admissions and pleadings, confessed the invalidity of those proceedings; (3) that it was admitted that the pleadings relative to the...