Monfils v. . Hazlewood

10 S.E.2d 673, 218 N.C. 215, 1940 N.C. LEXIS 125

• Court: Supreme Court of North Carolina
• Decided: September 25, 1940
• Status: Published

Opinion

ScheNCK, J.

This action having been instituted under the provisions of C. S., 160, it cannot be maintained by an administratrix of a foreign jurisdiction. Hall v. R. R., 146 N. C., 345; ibid, 149 N. C., 108. “No suit can be maintained upon a cause of action arising in tbis State by any person except an executor or administrator duly appointed by the local court.” Tieffenbrun v. Flannery, 198 N. C., 397. Actions for wrongful death instituted under the provisions of the statute, C. S., 160, since they exist only by virtue of the statute, must be instituted and prosecuted strictly in accord with the statute. Brown v. R. R., 202 N. C., 256.

“A foreign administrator has no authority in this State, and cannot sue nor be sued as such; and since a nonresident cannot be appointed administrator, there should be an ancillary administration by a proper person in this State.” McIntosh, N. C. Prac. & Proc., sec. 250, p. 234; Morefield v. Harris, 126 N. C., 626; Hall v. R. R., supra; C. S., 8 (2).

The defendants had thirty days after the final determination of then-motion to remove in which to answer or demur. C. S., 509. The demurrer in this action was filed within the statutory time.

Among the grounds for demurrer prescribed by statute are (1) the plaintiff has not legal capacity to sue, and (2) the complaint does not state facts sufficient to constitute a cause of action. C. S., 511.

It appearing that the demurrer was timely filed, that the plaintiff has not legal capacity to sue and that the complaint does not state facts sufficient to constitute a cause of action, the judgment sustaining the demurrer and dismissing the action must be affirmed.

We cannot concur in the argument of counsel for appellant that “the full faith and credit” clause of the Constitution of the United States, Art. IY, sec. 1, or the “due process of law” clause of the Fourteenth Amendment thereto, is impinged by the judgment below.

Affirmed.