Stubbs v. Ratliff

• Decision Date: 25 January 1943
• Docket Number: 15494.
• Citation: 24 S.E.2d 127,202 S.C. 67
• Parties: STUBBS v. RATLIFF et al.
• Court: South Carolina Supreme Court

24 S.E.2d 127

202 S.C. 67

STUBBS v. RATLIFF et al.

No. 15494.

Supreme Court of South Carolina

January 25, 1943

Banks D. Thomas, of Wadesboro, N. C., and J. Arthur Knight, of Chesterfield, for appellants.

J E. Leppard, of Chesterfield, and C. T. Graydon, of Columbia for respondent.

L. D LIDE, Acting Associate Justice.

W. L Stubbs, Sr., was a resident of Chesterfield County at the time of his death which occurred on or about August 2, 1940. He was killed while riding a bicycle which was in collision on a highway in that County with a motor truck of the defendants, a partnership engaged as a common carrier of goods for hire in and through the County of Chesterfield and other parts of the State of South Carolina.

This action was commenced in the Court of Common Pleas for Chesterfield County on or about the 11th day of February, 1941, to recover the sum of $50,000 damages, actual and punitive, for the death of W. L. Stubbs, Sr., alleged to have been caused by the negligence and wilfulness of the defendants in the operation of the motor truck above referred to. The action was brought by W. L. Stubbs, Jr., as administrator of the estate of W. L. Stubbs, Sr., for the benefit of the widow and children of the deceased, whose names are set forth in the complaint, the plaintiff being one of them, and the action is expressly brought under and by virtue of the statute commonly known as Lord Campbell's Act.

The case was in due time removed to the United States District Court for the Eastern District of South Carolina, and the subsequent pleadings were drawn in accordance with the practice of that Court, including a motion to dismiss the complaint upon a jurisdictional ground, such a motion being equivalent to a demurrer under our practice. And it appears that on April 17, 1941, a consent order was handed down by the District Court remanding the cause to the Court of Common Pleas for Chesterfield County.

Hence on April 20, 1942, the motion to dismiss, the same being treated by all counsel as a demurrer, came on to be heard before Hon. Henry T. Busbee, Special Judge presiding in Chesterfield, and the question raised by the demurrer arose from the fact that it appears on the face of the complaint that although it is alleged that the plaintiff is the duly appointed administrator of the estate of W. L. Stubbs, Sr., deceased, it is also alleged that the plaintiff is a resident and citizen of the Town of Hamlet, County of Richmond, State of North Carolina, and the specific ground of the demurrer is that a nonresident cannot be appointed the administrator of a decedent who at the time of his death was domiciled in South Carolina; or stating the ground more precisely, that a nonresident cannot be appointed the primary or domestic administrator of a person who at the time of his death was domiciled in South Carolina.

Special Judge Busbee handed down his order overruling and refusing the motion thus treated as a demurrer, upon the authority of the case of Ex parte Peele, 85 S.C. 140, 67 S.E. 135, and an act of the General Assembly originally adopted in 1933, and to which reference will hereinafter be made.

From this order the defendants appeal to this Court, and counsel for appellants in their brief state that the single fundamental proposition involved might be treated as raising three questions, to wit:

(1) What was the law governing the appointment of nonresidents as primary administrators prior to March 18, 1933, the date of approval of the 1933 act?

(2) What is the proper interpretation of that act as thereafter amended?

(3) "Can appellants take advantage of the illegal appointment of the administrator by the Probate Court in this action?"

It is admitted that at common law a nonresident of the State was eligible for appointment as an administrator of the estate of a decedent who at the time of his death was a resident of and domiciled in this State. But in 1878 an act of the General Assembly was passed, the terms of which are now embodied in Sections 9015 and 9016, Code 1942; and in the case of In re Estate of Neubert, 58 S.C. 469, 36 S.E. 908, in which the opinion of the Court was delivered by Chief Justice McIver, he expressed the view that the effect of this legislation was that a nonresident could not be granted letters of administration in this State, but this was clearly obiter dictum, because in that case a resident had been appointed, and the validity of that appointment on other grounds is apparent.

And in the later case of Ex parte Peele, supra, the Court expressly and specifically held that a nonresident may be appointed administrator in this State of the estate of a resident of this State, and that the statute of 1878 did not in this respect change the preexisting law. This was the only question involved in the case, and the opinion of the Court delivered by Mr. Justice Woods is clear and unequivocal. In the course of this opinion he refers with great respect to the remarks of Chief Justice McIver in the case of In re Estate of Neubert, supra, but holds that they were obiter dicta because "the case in no wise depended on that point." L85 S.C. 140,...