State ex rel. Krey v. Probate Court of Dakota County

• Decision Date: 04 November 1892
• Citation: 53 N.W. 463,51 Minn. 241
• Parties: State of Minnesota ex rel. John Krey v. Probate Court of Dakota County
• Court: Minnesota Supreme Court

53 N.W. 463

51 Minn. 241

State of Minnesota ex rel. John Krey v. Probate Court of Dakota County

Supreme Court of Minnesota

November 4, 1892

October 28, 1892, Argued

Certiorari to review the proceedings of the Probate Court of Dakota County, Moran, J., and to reverse its order made in April, 1892, denying the petition of John Krey for the payment of his claim against the estate of James W. Imeson deceased.

Between May 1, 1888, and November 21, 1890, Imeson resided with his wife and family, of eleven children, in Dakota County. Between September 1, 1889, and November 21, 1890, John Krey a merchant, furnished to Imeson, for the support of himself and family, groceries and provisions of the value of $ 904.25, which sum is unpaid. Imeson died intestate November 21, 1890. His death was caused solely by a collision on that day at South St. Paul, between his carriage and a switch engine of the Chicago, St. Paul and Kansas City Railway Company. On January 12, 1891, Cynthia A. Imeson and James W Barwise were appointed by the Probate Court administrators of Imeson's estate. Krey presented his claim against the estate, and it was allowed by the court to the amount of $ 884.09. In April, 1891, the administrators commenced an action against the Railway Company for the alleged wrongful act by which Imeson's death was caused. The suit was compromised, and the administrators received on June 19, 1891, on settlement, $ 880.80 net.

March 10, 1892, on the petition of Krey a citation was issued out of the Probate Court, requiring the administrators to show cause why they should not pay his claim out of the money received from the Railway Company. The hearing on this citation was had March 24, 1892. In April, 1892, the order to show cause was discharged. That court held that this money was not applicable to the payment of the debts of deceased. A writ of certiorari was allowed by the Chief Justice, returnable October 4, 1892. Return was duly made. On that day the respondent moved to quash the writ.

Writ quashed.

Otto K. Sauer, for relator.

The only question is as to the construction and applicability of Laws 1891, ch. 123, which besides reducing the amount that may be recovered, provides that out of that amount there shall first be deducted and paid any demand for the support of the deceased, and funeral expenses allowed by the court. The act is not unconstitutional because retrospective as affecting the vested rights of the widow and next of kin. The death of Imeson gave no one any vested right to recover therefor. A repeal of the act at any time before judgment would have defeated the suit. Bailey v. Mason, 4 Minn. 546, (Gil. 430;) Dillon v. Linder, 36 Wis. 344; Van Inwagen v. City of Chicago, 61 Ill. 31; Town of Stafford v. Town of Sharon, 61 Vt. 126; Covington, etc., R. Co. v. Kenton Co. Court, 12 B. Mon. 144. Respondent's contention that the petitioner's claim is not one for the support of deceased, is clearly wrong. The act is very broad. Any demand for the support of the deceased, certainly includes groceries and provisions, the very necessaries of life. The support of a married man is inseparable from that of his family.

Cyrus J. Thompson, for respondent.

The motion to quash should prevail. The relator's remedy was by appeal to the District Court. Laws 1889, ch. 46, § 254. Therefore certiorari will not lie. State v. Milner, 16 Minn. 55, (Gil. 43;) Minnesota Cent. R. Co. v. McNamara, 13 Minn. 508, (Gil. 468;) Wood v. Myrick, 9 Minn. 149, (Gil. 139.)

Laws 1891, ch. 123, was passed after Imeson's death. Immediately after receiving the injury, Imeson had a cause of action against the Railway Company, which the legislature could not thereafter take away. The right vested in him in his lifetime, and by the statute then in force the same right descended to his widow and next of kin. 1878 G. S. ch. 77, § 2; Laws 1889, ch. 109; Rugland v. Anderson, 30 Minn. 386; Boutiller v. Steamboat Milwaukee, 8 Minn. 97, (Gil. 72.) This right the legislature could not, by subsequent legislation, take away or alter. In so far as Laws 1891, ch. 123, attempts to do this, it is unconstitutional. Menges v. Dentler, 33 Pa. 495; Kay v. Pennsylvania R. Co., 65 Pa. 269; Dunlap v. Toledo, A. A. & G. T. Ry. Co., 50 Mich. 470; Osborne v. City of Detroit, 32 F. 36; Eastman v. Clackamas Co., 32 F. 24.

The act does not warrant the construction contended for by relator. The legislature evidently had in mind the class of cases where persons employed in operations involving more or less personal risk and danger, receive injuries resulting in death. These persons are generally improvident of the future. But the dead must be buried, and the necessities of the living provided for, and unless some means be devised whereby those who should minister to the wants of the injured can receive compensation, many of these unfortunate will become objects of charity. The legislature in view of this wisely provided that any demand for the support of the deceased and funeral expenses shall be first deducted and paid. The relator furnished groceries for the support of the deceased and his family, before the injury, relying on the credit of Imeson. The claim is neither more nor less than an ordinary debt, and should stand on no better basis.

OPINION

Gilfillan, C. J.

Certiorari to bring here the order of the Probate Court of Dakota county, denying an application for an order directing the administrators of an estate to pay a claim which had been allowed. The respondent moves to quash the writ on the ground that appeal, and not certiorari, is the proper remedy. The writ will lie, and it will lie only, to bring...