The Cherokee & Pittsburg Coal and Mining Company v. Britton

• Decision Date: 01 June 1896
• Docket Number: 36
• Court: Kansas Court of Appeals
• Parties: THE CHEROKEE & PITTSBURG COAL AND MINING COMPANY v. SIMON BRITTON, as Administrator of the Estate of William James, deceased

45 P. 100

3 Kan.App. 292

THE CHEROKEE & PITTSBURG COAL AND MINING COMPANY v. SIMON BRITTON, as Administrator of the Estate of William James, deceased

No. 36

Court of Appeals of Kansas, Southern Department, Eastern Division

June 1, 1896

Opinion Filed June 2, 1896.

MEMORANDUM.--Error from Crawford district court; S. H. ALLEN judge. Action by Simon Britton, as administrator of the estate of William James, deceased, against The Cherokee &amp Pittsburg Coal and Mining Company to recover damages for the killing of plaintiff's intestate. Judgment for plaintiff. Defendant brings the case to this court. Reversed. The opinion herein, filed June 2, 1896, states the material facts.

Judgment reversed and case remanded.

A. A. Hurd, O. J. Wood, and W. Littlefield, for plaintiff in error.

M. Byrne, and Kimball & Osgood, for defendant in error.

JOHNSON P. J. All the Judges concurring.

OPINION

JOHNSON, P. J.:

This suit was commenced by Simon Britton, as the administrator of the estate of William James, deceased, against the Cherokee & Pittsburg Coal and Mining Company to recover damages for wrongfully causing the death of William James, which suit was brought by the administrator for the benefit of the father and mother of William James. To the petition filed by the administrator the following affidavit is attached.

"I, Simon Britton, do solemnly swear that the cause of action set forth in the petition hereto prefixed is just, and I do further swear that by reason of my poverty I am unable to give security for costs."

On the 18th day of October, 1889, the defendant below filed its motion to quash the summons in said action, for the following reasons:

"1. That the plaintiff in said cause did not, prior to the issuance of said summons, give a bond approved by the clerk of said court, conditioned that the plaintiff would pay all costs that might accrue in said action in case he should be adjudged to pay them, or in case the same could not be collected from the defendant, as required by law, and did not, prior to the issuance of said summons, deposit with the clerk of said court $ 15 or any other sum in lieu of such bond for costs.

"2. That said plaintiff is not the legally appointed and qualified administrator of the estate of William James, deceased, for the reason that said William James did not leave any estate in the county of Crawford, in the state of Kansas, to be administered upon.

"3. That said plaintiff, Simon Britton, is not a suitable person to be appointed administrator of the estate of William James, deceased, by reason of his poverty and inability to give a bond.

"4. That said Simon Britton, prior to the commencement of this action, did not give a good and sufficient bond with two or more sureties in a sum not less than double the value of the personal property of the estate of William James, deceased, as required by law."

This motion was overruled by the court and excepted to by the defendant below, and this ruling is the first error complained of in this court.

It is contended by plaintiff in error that, as paragraph 4682 of the General Statutes of 1889 requires the plaintiff, before he can commence an action, or a summons issue upon the petition filed in the office of the clerk of the district court, to file with the clerk of said court a bond to be approved by the clerk, conditioned that the plaintiff will pay all costs that may accrue in said action which he is adjudged to pay, or in lieu thereof make a deposit of $ 15 with the clerk before he has any authority to issue a summons, no bond for costs was given, and the clerk was not authorized to issue summons; that as the summons was issued without a bond being given or the deposit of $ 15 with the clerk, the summons should be quashed and the defendant not be required to answer in said action, nor be put to the trouble and expense of appearing and defending said action; that the provisions of the statute in paragraph 4682, which provides that, in case the plaintiff make an affidavit setting forth that he has a just cause of action against the defendant, and on account of his poverty is unable to give such security for costs, no bond shall be required, and of paragraph 4683, do not apply to actions brought by a person in his representative capacity, but only refer to actions brought by an individual, where he has a just cause of action and on account of his poverty is unable to give the bond required or deposit the sum of $ 15. We do not think this position tenable. The statute makes no distinction between a party suing in his individual capacity or a party suing in a representative capacity. The language of paragraph 4682 is:

"Provided, That in any case where the plaintiff or plaintiffs having a just cause of action against the defendant or defendants, by reason of his, her or their poverty, is or are unable to give such security for costs, on affidavit of the plaintiff or plaintiffs made before the clerk that such is the fact, no bond shall be required."

Counsel for plaintiff in error insist that as paragraph 2787, General Statutes of 1889, requires an administrator, on his appointment, to qualify by giving a bond with two or more sufficient sureties in a sum double the value of the personal property of the estate, payable to the state of Kansas, with conditions therein mentioned, before entering upon the duties of administrator such bond must be given, and that before the commencement of this action he must give the bond required by paragraph 4682 of the General Statutes of 1889; that unless these bonds were executed as required by the statute he would not be authorized to commence this suit, nor have any standing as an administrator; that this action is not brought by him as an individual, but in his representative capacity as administrator of the estate of William James, deceased; that, if he was able to give the bond required before entering upon the duties as administrator, he certainly was able to give a bond for costs, or at least make a deposit such as the statute requires. We do not think that this contention is sound. The bond he gives as administrator is for the faithful performance of the duties of an administrator. It is for the personal obligation of the administrator and for his individual liability. The bond for costs in the prosecution of the action for damages is an obligation against the estate of William James, deceased. The action is prosecuted by the administrator in his representative capacity, but is for the benefit of the next of kin of William James, deceased, and is not the obligation of Simon Britton, individually. He is not personally liable for the payment of the costs accruing by reason of the prosecution of such action. He may be abundantly able to give security for any amount in a matter where he would be personally liable, but the estate may be entirely insolvent, and, on account of extreme poverty of the beneficiaries of said estate, be entirely unable to give the bond required by law, or to make the deposit required before summons can issue, and, upon the making of the affidavit required by law, he is entitled to commence the action and prosecute it to a final determination.

For a second assignment of error, it is set forth that, after the overruling of the motion of the defendant below to quash the summons, defendant filed its answer to the petition, and the plaintiff below filed an amended petition, after having obtained leave of the court to do so. This petition stood in the place of the original petition and became the petition in the case. The plaintiff below alleged:

"And now comes the plaintiff, Simon Britton, administrator of the estate of William James, deceased, and by leave of the court first had and obtained files this, his amended petition, and says: That on the 22d day of October, 1889, he was duly appointed by the probate court of Crawford county, Kansas administrator of the estate of said William James, deceased and immediately qualified and entered upon his duties, and is now acting as such; that the said William James was of the age of 21 years when he died; that his said death occurred on or about the 19th day of July, 1889; that the said William James died unmarried, intestate, leaving surviving him his father and mother and eight brothers and sisters, all of whom are residents of Roanoke, Woodford county, Illinois, and are in poor and indigent circumstances in this, that they have no real or personal property or other investment from which any income is or might be derived; that the whole of said family were dependent for support upon the earnings of the said William James and one other son, both of whom were employed at manual labor; that the father of the decedent was an invalid soldier of the late civil war and drew a small pension from the government of the United States of $ 8 per month, but has been unable to do any work whatever during the past five or six years, and since the commencement of this action has died; that said William James previously to his death contributed all of said earnings to the support of said family and they had a reasonable expectation that he would continue to do so had he lived; that said William James at the time of his death and previously thereto was employed by the defendant in its mine at Frontenac, Kan., as a driver, and his services were reasonably worth the sum of $ 2 per day. Plaintiff says that he is a resident of the state of Kansas, and is an uncle of the said William James, deceased. Plaintiff further says that the said defendant, the Cherokee & Pittsburg Coal and Mining Company, is a corporation duly organized and incorporated under the laws of the state of Kansas, and at the time of the injury received by the said William James and...