De Valle Da Costa v. Southern Pac. Co.
| Decision Date | 16 March 1908 |
| Docket Number | 244. |
| Citation | 160 F. 216 |
| Parties | DE VALLE DA COSTA v. SOUTHERN PAC. CO. |
| Court | U.S. District Court — District of Massachusetts |
W. P Murray, John S. Patton, and Charles F. Smith, for plaintiff.
Foster & Turner, for defendant.
This is an action of tort removed from the state court. The declaration alleged that the plaintiff was the administrator of Rodriguez, late of Boston. The first count alleged that on a voyage from New York to Galveston, on board the steamer El Valle, in the harbor of Galveston, within three miles from the shore of Texas, Rodriguez was injured by the negligence of the defendant, from which injury his death resulted six days afterwards; that he left a widow and seven minor children dependent upon him for support, wherefore a cause of action accrued to the plaintiff by virtue of Rev. St. Tex 1895, arts. 3017-3027. The second count alleged that the defendant operated a line of steamers to which the El Valle belonged, and which plied between New York and Galveston that, by reason of the accident above described, an action accrued to the plaintiff by virtue of Code Civ. Proc. N.Y. Sec. 1902. The third count alleged that the defendant was incorporated under the laws of Kentucky, and that in consequence of the accident above described a cause of action accrued to the plaintiff by virtue of Ky. St. 1903, c. 1 Sec. 6. The defendant had constituted the Massachusetts commissioner of corporations its attorney to receive service of process; and the writ was duly served upon him. To this declaration the defendant pleaded in abatement that the plaintiff was not the administrator of Rodriguez, and further denied 'that Rodriguez was a resident of Boston at the time of his death, or left goods or estate within the county of Suffolk, so that, if the plaintiff was appointed by the probate court within the county of Suffolk, said court had no jurisdiction to make such appointment.'
The case was heard upon the declaration, the plea in abatement, and the following agreed statement of facts, as follows:
'It is hereby agreed that unless the right of action against the plaintiff is assets in this jurisdiction, the deceased having no property here and not having been at the time of his death a resident of the state of Massachusetts, the plea in abatement is to be sustained, but, if such right of action is assets sufficient to give jurisdiction to the probate court to bind an administrator here, the plea in abatement is to be overruled, and the case is submitted to the court for a ruling upon the matter.' That a cause of action arose under the Kentucky statute in favor of an administrator of Rodriguez duly appointed seems to be settled by The Hamilton, 207 U.S. 398, 28 Sup.Ct. 133, 52 L.Ed. . . . . Was this cause of action assets of Rodriguez's estate in...
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Scarborough, In re, 245
...Peterson v. Chicago, B. & Q. Ry. Co., 187 Minn. 228, 244 N.W. 823; In re Waits' Estate, 23 Cal.2d 676, 146 P.2d 5; De Valle Da Costa v. Southern Pac. Co., 1 Cir., 160 F. 216; 33 C.J.S. Executors and Administrators § 17, p. 894; 21 Am.Jur. On the motion to recall for cancelation the letters ......
- Southern Pac. Co. v. De Valle Da Costa
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McCarron v. New York Central Railroad Co.
... ... administrator of a decedent." In De Valle Da Costa v ... Southern Pacific Co. 160 F. 216, an action for wrongful ... ...
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Greenberg v. GIANNINI ET AL.
...At times courts have indeed spoken as though removal to a federal court "waived" some defect of venue. De Valle Da Costa v. Southern Pacific Co., C.C., 160 F. 216, 218; Cucciarre v. New York Central R. & H. R. Co., 7 Cir., 163 F. 38, 41; Goetz v. Interlake S. S. Co., D. C., 47 F.2d 753, 757......