Saner-Ragley Lumber Co. v. Spivey

• Decision Date: 15 March 1922
• Docket Number: (No. 297-3582.)
• Citation: 238 S.W. 912
• Parties: SANER-RAGLEY LUMBER CO. et al. v. SPIVEY et al.
• Court: Texas Supreme Court

238 S.W. 912

SANER-RAGLEY LUMBER CO. et al. v. SPIVEY et al.

(No. 297-3582.)

Commission of Appeals of Texas, Section A.

March 15, 1922.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Action by J. H. Spivey and others against the Saner-Ragley Lumber Company and others. Judgment for plaintiffs, and application for writ of error dismissed by the Court of Civil Appeals (230 S. W. 878), and defendants bring error. Reversed, and remanded to the Court of Civil Appeals, with directions.

Kimbrough, Underwood & Jackson, of Amarillo, C. L. Black, of Austin, P. R. Rowe, of Livingston, and Dean & Humphrey, of Huntsville, for plaintiffs in error.

Smith & Crawford and Oswald S. Parker, all of Beaumont, and Feagin, German & Feagin, of Livingston, for defendants in error.

SPENCER, P. J.

J. H. Spivey sued Saner-Ragley Lumber Company, a corporation, and W. G. Ragley, in the district court of Jefferson county, Tex., for $75,000 damages alleged to have been sustained by virtue of an alleged breach of contract upon the part of the defendants. The defendants each filed a plea of privilege to be sued in Polk county, which was sustained, and the cause transferred to the latter county.

J. H. Spivey died intestate before the case was called for trial. Upon suggestion of his death, and upon the finding that an administration upon his estate was unnecessary, his legal heirs, who are among the defendants in error here, were made parties plaintiff. The defendants, plaintiffs in error here, filed no answer and made no appearance, and upon the case being called in its regular order on January 6, 1920, the plaintiffs, defendants in error here, having announced ready for trial, the court rendered judgment upon the evidence adduced in the sum of $75,000.

The term of court adjourned on January 10, 1920, without plaintiffs in error having filed a motion for new trial, or otherwise attacking the judgment. On January 29, 1920, an execution was caused to be issued and placed in the hands of the sheriff, who requested satisfaction of the judgment of the plaintiffs in error. This request was the first knowledge that the latter had that a judgment had been rendered against them, and, under an agreement between Ragley and the sheriff, the execution was held in abeyance until plaintiffs in error could perfect an application for writ of error.

On April 22d the latter filed their petition and bond for writ of error, and named as defendants in error in the writ and as obligees in the bond all the substituted plaintiffs appearing of record and also the firm of Smith & Crawford and Oswald S. Parker, who had been allowed a one-half interest in the judgment.

On January 19, 1920, Mrs. Fannie Spivey, one of the substituted plaintiffs, and mother of the original plaintiff, died intestate in Colquitt county, Ga., where she then resided. The fact of her death was not known to plaintiffs in error or their attorneys until the motion to dismiss the petition for writ of error, hereafter set forth, was filed in the Court of Civil Appeals; but the attorneys for the defendants in error had knowledge of her demise.

The Court of Civil Appeals found that, at the date of the filing of the petition for writ of error, there was no administration upon the estate of Mrs. Spivey pending anywhere; that on December 11, 1920, a temporary administrator of her estate was appointed by the proper authority in Colquitt county, Ga.; that on January 3, 1921, a temporary administrator of her estate was appointed by the probate court of Polk county, Tex.; and that all of her legal heirs were named as defendants in error in the petition for writ of error and as obligees in the bond.

On December 15, 1920, defendants in error filed the following motion in the Court of Civil Appeals:

"Defendants in error move to dismiss the writ of error because the Court of Civil Appeals has no jurisdiction of the case:

"First. Because the petition for writ of error names Mrs. Fannie Spivey as one of the parties adversely interested, and at the time same was filed she was dead, and neither her heirs nor legal representatives are made parties.

"Second. Because the supersedeas bond is made payable to Mrs. Fannie Spivey as one of the obligees, and, she being dead at the time it was filed, the same is a nullity, and a valid bond is necessary to confer jurisdiction upon the Court of Civil Appeals."

In support of its motion to dismiss it was alleged and proved that Park's Annotated Civil Code of Georgia, in force at the date of the decease of Mrs. Spivey, reads as follows:

"Upon the death of the owner of any estate in realty, which estate survives him, the title vests immediately in his heirs at law. The title to all other property owned by him vests in the administrator of his estate for the benefit of the heirs and creditors." Section 3929.

The honorable Court of Civil Appeals in disposing of the case held: First, that the situs of the judgment followed the residence of the judgment creditor, and hence the title thereto vested upon the death of Mrs. Spivey in the Georgia administrator in virtue of the Georgia statute, and not in her heirs at law; and that, although the administrator had not been appointed at the time the writ of error was sued out, as the necessity for the administration existed, he would have to be appointed and made a party to the writ of error and an obligee in the bond before it could be said in contemplation of law (Vernon's Sayles' Ann. Civ. St. 1914, art. 2088) that all the parties adversely interested in the judgment were made parties to the writ and obligees in the bond. 230 S. W. 878.

There is a general rule of the common law to the effect that the domiciliary administrator takes title to all the personal property of the deceased wherever situated. This rule is thus stated in 20 Corp. Jur. p. 1118:

"The general rule is that the title of a domiciliary representative extends to all of decedent's personal estate wherever situated, although in some jurisdictions the title of the domiciliary representative is held to be limited to assets within the jurisdiction."

This rule is recognized in a general way by a number of the authorities cited in support of the text, notably Wilkins v. Ellett, 9 Wall. 740, 19 L. Ed. 586; Morrison v. Hass, 229 Mass. 514, 118 N. E. 893; Compton's Adm'r v. Borderland Coal Co., 179 Ky. 695, 201 S. W. 20, L. R. A. 1918D, 666; but in no case cited or found has the rule been applied when the effect of its application would be to defeat a statute of the foreign sovereign, or to deprive the latter of its inherent power over the estates of deceased persons, situate within its jurisdiction.

On the other hand, in cases in which the question has been directly in issue it has been emphatically declared by eminent jurists and able text-writers that letters of administration issued to domiciliary representative cast no title upon him to personal property outside of the jurisdiction issuing such letters. Barclift v. Treece, 77 Ala. 528; Cureton v. Mills, 13 S. C. 409, 36 Am. Rep. 700; Dial v. Gary, 14 S. C. 573, 37 Am. Dec. 737; Murphy v. Crouse, 135 Cal. 14, 66 Pac. 971, 87 Am. St. Rep. 90; Crohn v. Clay County State Bank, 137 Mo. App. 712, 118 S. W. 498; Story, Confl. of L., pars. 512, 524.

In Barclift v. Treece, supra, the court said:

"The letters of administration granted in South Carolina, the domicile of the decedent, have no extraterritorial operation. Without compliance with the provisions of our statutes, the foreign administrator has no authority to recover or to receive assets located in this state, Hatchett v. Berney, 65 Ala. 39. No title to the personal property situated here is cast on him or the distributees; and no arrangement between them for the distribution of the estate, including the bond sued on, can operate to defeat the title of the personal representative appointed in this state, or his right to recover the personal assets in this jurisdiction, or divest the domestic court of jurisdiction of the administration. * * *"

The Supreme Court of South Carolina, in Dial v. Gary, supra, said:

"Hence, in every state, we find laws declaring in whom such property within its limits, shall vest, and in what manner it shall be administered. True, if the decedent has left a will or testament, upon such testament being established under the lex domicilii, it will usually be confirmed under the jurisdiction where the property is found. And the title of the executor, as well as the disposition of the property therein appointed and directed will be recognized there. But this confirmation must take place and be had in accordance with the laws of the rei sitæ before even an executor under such testament can intermeddle with the property. But in cases of intestacy there must be a grant of administration in such jurisdiction where property is found; it being well settled that the grant of no state, not even the grant of the state of domicile, can extend beyond the territory of the government which grants it. Nor can it invest the administrator with title to any movable property, except to such as may be found within its limits. * * * These are the general principles applicable to executors and administrators in cases like this. Wms. on Ex'rs, vol. 1, p. 320, and cases there cited, notes 321, 322; Story's Confl. of L., §§ 512, 524."

Regardless of this general rule, we are of opinion, in view of article 3235, that the domiciliary administrator takes no title to personal property of a nonresident having its situs in this state, so long as such property remains subject to the jurisdiction of our courts. This article provides in substance that all of the property of an intestate shall vest immediately in the heirs at law of the deceased subject in their hands to the payments of the debts of the intestate but upon the issuance of letters of administration it becomes the duty of the administrator to recover possession of and hold...