J. J. Newman Lumber Co. v. Scipp

90 So. 11, 128 Miss. 322

• Court: Mississippi Supreme Court
• Decided: March 15, 1922
• Docket: No. 22468
• Status: Published

Opinion

Holden, J.,

delivered the opinion of the court.

The appellee, Fannie Scipp,. as the wife and sole heir of Charlie Scipp, deceased, recovered judgment for two thousand dollars against appellant, Newman Lumber Company, in the circuit court of Lamar county for the death of her husband, Charlie Scipp, who, it is alleged, was killed through the negligent operation of the log trains of appellant, and from this judgment this appeal is prosecuted.

The appellant presents one ground for reversal, and that is the lower court erred in maintaining jurisdiction and proceeding to judgment in the case,. because the action should have been abated for the reason that Lorna Scipp, the administratrix of the estate of the deceased, had previously filed a suit which was then pending in the circuit court of Jefferson Davis county on the same cause of action against the same defendant, and that summons had been issued and served and the court had full jurisdiction to try the case. The appellee demurred to the plea in abatement filed by the appellant, and the demurrer was • sustained by the'court.

The contention of the appellant is simply this: That the' action for the wrongful death may be brought by the personal'representative of the deceased for the benefit of all persons entitled under the law to recover, or by the widow, and that, where the personal representative has filed suit first, the widow or other persons named in the statute cannot sue while the suit of the. personal representative is pending, because under the statute there can be but one suit for the benefit of all. Section 721, Code of 1906 (section 501, Hemingway’s Code).

The opposite contention of the appellee is that, where the widow sues as such, and is the sole heir, she may maintain the action even though a prior suit by the personal representative upon the same cause of action was then pending in a court of competent jurisdiction, and, second, that the plea of abatement filed in this case with the copy of the declaration in the suit of the personal representative is not sufficient to show jurisdiction over the appellant, for the reason that it is not charged in the body of the declaration that the appellant was domiciled or doing business in Jefferson Davis county, so as to give jurisdiction of the suit. ,

The decisive' question presented to us involves, a consideration of the statute (section 721, Code of 1906 [section 501, Hemingway’s Code]) which provides that the suit may be brought by the personal representative (an admin-istratrix)' or by the wife or the children, etc. We do not think the statute discriminates by giving priority in the bringing of suits to any particular one of the persons named in itr; and, when an administratrix is first with her suit for the wrongful death, none of the other persons named in the statute may bring the same cause of action against the same party while the first suit is pending. As between the personal representative and the wife, with reference to priority in the'right to sue, we think the statute does not discriminate, but places them upon equal ground, and the rule “First in time, first in right,” applies.

It may be, though we do not decide, because it is not pertinent, that the widow, when she is the sole heir or otherwise, may take steps to remove the administratrix in the court appointing her, and thus annul the suit. But, where the administratrix is regularly appointed, and brings suit authorized by the statute for the wrongful death, the defendant is not to be vexed by another suit upon the same cause while the first is pending.

As to the second point made.by the appellee that the declaration in the suit filed by the administratrix does not charge sufficient facts to give jurisdiction to the court over the appellant, we have concluded theposition is untenable. After a careful examination of the plea in abatement, and the copy of the declaration filed therewith, it is our opinion that the caption of the declaration which sets out that “J. J. Newman Lumber Company, a corporation charteréd and organized under the laws of the state of Mississippi, but doing business and having officers and agents in Jefferson Davis county, Miss., upon whom process can be served, defendant,” taken in connection with allegations and references to the defendant, Newman Lumber Company, in the body of the declaration, substantially and sufficiently charges jurisdiction in the court over the appellant. Under our statutes and decisions pleadings are simplified, and, where the facts constituting the cause' of action and showing jurisdiction, are stated in plain language, and contain sufficient matter of substance for the court to proceed upon the merits of the cause, it is sufficient. We think the declaration here involved, considered all together, sufficiently meets this requirement. Sections 729 and 730, Code of 1906 (Section 512 and 513, Hemingway’s Code).

In view of the conclusion reached above the judgment of the lower court will be reversed, and judgment entered here for appellant.

Reversed and rendered.