Richmond & Danville Railroad v. Gorman

7 App. D.C. 91, 1895 U.S. App. LEXIS 3620

• Court: Court of Appeals for the D.C. Circuit
• Decided: October 8, 1895
• Docket: No. 377
• Status: Published

Opinion

Mr. Justice Shepard

delivered the opinion of the Court:

Whether the judgment appealed from shall be reversed or affirmed depends upon the faith and credit to be given to the proceedings in the courts of North Carolina, commencing with the grant of letters of administration to Brown and ending with the judgment of the United States circuit court confirming the settlement that had been made by him. All minor questions arising on the trial may be pretermitted. Indeed, the latter judgment may be left out of consideration, in so far as the validity of the appointment of the administrator is concerned. This judgment was sufficient for its own purposes. It was a final judgment in the suit brought and is as effectual as if it had directly adjudicated the amount of the recovery upon a formal trial. United States v. Parker, 120 U. S. 89; Merrett v. Campbell, 47 Cal. 542. At the same time, however, it added no weight to the adjudication of the probate court under which Brown was appointed administrator. If, in fact, that order was void for want of jurisdiction, this judgment could not cure it; for the validity of the appointment of the administrator was not one of the questions to be adjudicated. Griffith v. Frazier, 8 Cranch, 9, 29.

It is virtually agreed that the statute of North Carolina, giving the right of action, is substantially similar to the act of Congress in force in the District of Columbia. The right of action is in the personal representative of the deceased, to be brought within one year; and the money recovered “ is not liable to be applied as assets in the payment of debts or legacies, but shall be disposed of as provided for the distribution of personal property in case of intestacy.” Code N. C. sec. 1500. Hence, it is conceded that the action could be maintained in this jurisdiction wherein the defendant carries on business and maintained a general office, although the death occurred in North Carolina. The suit could therefore be prosecuted in either jurisdiction by a lawfully appointed administrator, and until judgment rendered in one, the mere pendency of suit in the other would, it seems, be no bar to the prosecution of either. Stanton v. Embrey, 93 U. S. 548, 554. But when one passes into judgment the other must necessarily be baried. There cannot be two recoveries, in the same right upon the same cause of action. Payment to the administrator in North Carolina would also be a good bar. Wilkins v. Ellett, 108 U. S. 256.

Under the probate act of North Carolina the clerk of the superior court of Buncombe County was vested with judicial power and discretion in the matter of the appointment of administrators for the estates of persons dying intestate in that State, and the entry of the order of appointment must be regarded as the judicial act of one in the exercise of a general jurisdiction. In that view it is of no consequence that the record does not show a strict compliance with the requirements of the statutes hereinabove quoted, with respect to the giving of notice and the renunciation of those who had the preference. Garrison v. Cox, 95 N. C. 353 ; Lyle v. Siler, 103 N. C. 261 — 264; see also Kelly v. West, 80 N. Y. 139-145; Simmons v. Saul, 138 U. S. 439; 452, 453.

Two of the statutory conditions in which the clerk of the superior court of a county in North Carolina can appoint an administrator for the estate of an intestate have been discussed in this case. One is, “ where the decedent at or immediately previous to his death was domiciled in the county of such clerk.” The other is, “ where the decedent, not being domiciled in the State, died in the county of such clerk, leaving assets in the State.” Several interesting questions arise out of the second of these conditions ; but in the view we have taken of the case, it is not necessary to decide them. Besides, we think it apparent from the record that the action of the clerk in granting the letters was founded wholly upon the supposed existence of the first condition; that is, upon the assumption that the deceased, “ at or immediately previous to his death, .was domiciled in the county of such clerk.”

What is a person’s domicile, in the ordinary legal sense of that word, is often a matter of perplexing inquiry, determinable chiefly by the evidence of the person himself; for it is shown, not so much by his actual conduct and movements, as by the intention accompanying his actions. There was some apparent difficulty in this instance, but it may be conceded, as no doubt the jury intended to find, that, at and immediately previous to his death, the domicile of the deceased was in fact in the District of Columbia, where his wife and children resided.

It is not improbable that the word “domicile,” as used in the statute, was not intended to have its ordinary meaning. It is impossible to conceive the existence of more than one domicile, in the strict, sense, at one and the same time; yet, one clause of the section under consideration provides that, “ where the decedent at his death had his fixed place of domicile in more than one county, the clerk of any such county has jurisdiction.” The -proof offered by plaintiff tended to show that deceased’s domicile, his real home, was in the District of Columbia; but that he had been in Buncombe County, North Carolina, for about a year working at his trade of plumber.

It is not impossible to conceive that the clerk may have considered the foregoing provision of the statute as applying to just such a state of facts as this case presented; where a person, having a family home and legal domicile in one jurisdiction, might, for convenience of business, or the necessity of procuring a livelihood, actually remain for a considerable period of time in another, and thus create what has sometimes been called a “commercial residence” therein.

Be this as it may, however, the deceased was described in the application, or affidavit, upon which the letters were granted as “late of the county of Buncombe.” This was substantially an allegation that, “ at or immediately previous to his death he was domiciled in the county of such clerk.”

Having general jurisdiction in the matter of granting letters of administration upon the estates of deceased persons, the clerk was called upon, judicially, to inquire and determine whether intestate at, or immediately before, his death, was domiciled in his county. Grant that he erred in his conclusion, yet he nevertheless found that the deceased had been so domiciled and issued the letters accordingly.

The question, then, upon which the case must necessarily turn, is this: Can the grounds of that judgment be inquired into in this collateral proceeding in another jurisdiction, and the grant of letters declared void for the error committed ?

The proposition involved has been presented to the courts in many phases, has undergone much discussion and the result has been a serious conflict of decisions. These it would be an unprofitable as well as almost endless task to review. After much consideration, we can arrive at no other conclusion than that the grant of the letters of administration is not subject to collateral attack, and that the court erred in submitting that issue to the jury.

We are not unmindful that the application of the rule in this particular case is a hard one and that it may work an irreparable injury to the appellee and next of kin ; but, on the other hand, we believe that the rule itself is founded in reason and is promotive of a sound public policy, in that it tends to the ending of litigation over the same matter, the quieting of titles and the guaranty of the rights of innocent persons acquired in confidence in the integrity and stability of the decisions of the courts of the country. The abrogation of the rule would lead to as great, and more frequent, hardships against which the greatest diligence could not always guard.

It is notorious that ex parte proceedings of this character are often loosely conducted and abound in irregularities and errors, and not infrequently in attempts at fraud; but they are an essential part of the machinery of justice, and by the necessities of the situation are in the nature of proceedings in rem, which bind all persons, though not actual parties, and become the foundations of innumerable rights and titles.

The rule adhered to has the sanction, it is believed, of a majority of the courts of last resort in this country that have had it under consideration. Railway Co. v. Mahoney, 89 Tenn. 311, 317; Eller v. Richardson, Id. 575, S79; Raborg v. Hammond, 2 H. & G. 42, 49; Abbott v. Coburn, 28 Vt. 663, 667 ; Andrews v. Avory, 14 Grattan, 229, 236; Johnson v. Beazley, 65 Mo. 250; Quidort’s Admr. v. Pergeaux, 18 N. J. Eq. 472, 476, 477; Burdett v. Silsbee, 15 Tex. 604, 616; Murchison v. White, 54 Tex. 78, 82; Duson v. Dupre, 32 La. Ann. 896; Coltart v. Allen, 40 Ala. 155; Barclift v. Treece, 77 Ala. 528, 531 ; Estate of Griffith, 84 Cal. 107; Corrigan v. Jones, 14 Colo. 311; Bostwick v. Skinner, 80 Ill. 147, 151 ; Wight v. Walbaum, 39 Ill. 554, 564; Dequindre v. Williams, 31 Ind. 444, 455 ; Rollins v. Henry, 84 N. C. 569, 574; see also Holmes v. Oregon & Cal. Railroad Co., 7 Sawyer C. C. 380.

We have found no decision of the Supreme Court of the United States directly in point, but the conclusion seems to be within the principle established by many, including the following: Grignon’s Lessees v. Astor, 2 How. 319 ; Florentine v. Barton, 2 Wall. 216; Mohr v. Manierre, 101 U. S. 424; Wilkins v. Ellett, 108 U. S. 256; Simmons v. Saul, 138 U. S. 439, 451 ; McCormick v. Sidlivant, 10 Wheat. 192, 199; Erwin v. Lowry, 7 How. 172, 180; Dowell v. Applegate, 152 U. S. 327, 338. Noble v. Union River Logging Railroad, 147 U. S. 165, 173 ; Evers v. Watson, 156 U. S. 527, 533.

It has been urged with much earnestness and ability that the question here presented is not ruled by the foregoing cases, but is to be governed by the doctrine announced in Thompson v. Whitman, 18 Wall. 457, and Reynolds v. Stockton, 140 U. S. 254. That proposition will now be considered. The first of those cases was an action of trespass for the seizure of a vessel. The defence was that the vessel had been engaged in raking clams in the waters of New Jersey in violation of the laws of that State ; that the defendant, as the sheriff of Monmouth County, in said State, seized said vessel in the waters of said county, and brought her before two justices of the county, who, by virtue of the power conferred by the law aforesaid, entered judgment of condemnation against her for violation thereof, as having been seized in said county while unlawfully raking clams. The court below permitted the plaintiff to show that the vessel, when seized, was not within the limits of Monmouth County, and therefore not subject to seizure and condemnation. The Supreme Court, in affirming the judgment, held that the judgment of condemnation was not conclusive of the fact that seizure had been made in the said county.

In the well-considered case of Holmes v. Oregon & Cal. Railroad Co., 7 Sawyer C. C. 384, 400, which turned upon the very question here presented, Judge Sawyer met the argument founded on Thompson v. Whitman in the following words, which meet our approval. Said he: “I apprehend it will be found, by examining the case of Thompson v. Whitman, and the line of cases cited and commented on in that case, and comparing them with the other line of decisions cited, which were carefully avoided by the court in its opinion, that, after a cause of action has arisen, after the cause of action is complete, something must always be done by the court, through its executive or ministerial officers, or somebody else on behalf of the court, to give the court jurisdiction either of the person, or, in a proceeding in rem, of the thing; such as serving a summons in a case at law or subpoena in chancery, upon the person within the State, giving a notice in some prescribed place, mode or form, or seizing the thing. To get jurisdiction of the person, he must not only be served with process, but he must be served within the territorial jurisdiction of the court, as within the same State. In such case, service within the State is the jurisdictional fact to be performed by and upon the authority of the court through its ministerial officers, or other agencies of the court appointed by law. In some States, as in New York, the service may be by private parties ; but they act by the authority and on behalf of the court. In matters in rem there must be a seizure, and often some notice given to the parties in interest, by the court, in some prescribed mode. In such cases the seizure and notice are jurisdictional facts, subsequent to, and wholly independent of, the cause of action and of all pre-existing judicial facts not depending upon the action of the court, or its appointed agencies. In Thompson v. Whitman, the offence was complete when the vessel engaged in gathering oysters within the waters of New Jersey contrary to the statutes of that State. But the cause of action and forfeiture being complete, it was necessary to seize the vessel within the boundaries of the county over which the court had jurisdiction, to give jurisdiction to the court. The seizure within the county was the jurisdictional fact, and this was an act to be performed by the court, or on its behalf, through the agencies appointed by law. The jurisdictional fact was an act to be performed to get jurisdiction of the thing, in all respects analogous to the service of summons within the State in order to acquire jurisdiction of the person, or the levy of an attachment upon property in an attachment suit in order to get jurisdiction of the property. And this is the class of cases cited as authorities and commented on by the court in Thompson v. Whitman, and those acts to be performed by, or on behalf of the court, to acquire jurisdiction of the person or thing, the class of jurisdictional facts that may be questioned cqllaterally under this authority and those cited, even though the court must have passed over those facts. * * * Whenever the court undertakes to acquire jurisdiction over parties or things, through the acts of officers or other lawfully appointed agencies, performed by its authority, or on its behalf, it must see that the proper acts have been duly performed, and whether they have been performed or not, under the decision referred to, may be inquired into collaterally.”

Reynolds v. Stockton, supra, simply decides that a party who appeared and answered to a complaint, but took no subsequent part in the proceedings, was not concluded by a judgment, rendered in his absence, which was not responsive to the pleadings but wholly outside the issues therein.

Neither is the view we have adopted in conflict with anything fairly deducible from the doctrine of the decisions of that court, that letters of administration, issued upon the estate of a living man, are void. The jurisdiction of the probate court is limited to the estates of deceased persons. “ The decision of the ordinary that the person on whose estate he .acts is dead, if the fact be otherwise, does not invest the person he may appoint with the character or powers of an administrator. The case, in truth, was not one within his jurisdiction. It was not one which he had a light to deliberate. It was not committed to him by law. And although one of the points accrues in all cases proper for his tribunal, yet that point cannot bring the subject within his jurisdiction.” Marshall, C. J., in Griffith v. Frasier, 8 Cranch, 9, 23. Again it was said in Mutual Benefit Life Ins. Co. v. Tisdale, 91 U. S. 238, 243, that “ death was not the res presented to it; ” and that whether the applicant shall receive letters of administration “ was the res, and upon that only has there been an adjudication.” See also Scott v. McNeal, 154 U. S. 34, 48. Simmons v. Saul, 138 U. S. 439, 451, is a case more nearly like the case at bar than any above cited. One Robert M. Simmons died intestate in Louisiana in 1830 possessed of an inchoate claim against the United States for 640 acres of land, which, among others of similar nature, was confirmed by act of Congress in 1858. Deceased had no children, but left brothers and sisters who inherited his estate. Under the code of Louisiana “ a succession is called vacant when no one claims it, or when all the heirs are unknown, or when all known heirs have renounced it.” By another article, if a succession under $500 in value be so small, or so much in debt that no one will accept the curatorship, the judge, after having ordered an inventory of the effects, shall appoint the district attorney of the district curator, who shall cause the effects to be sold and the proceeds applied to the payment of the debts. Parties desiring to obtain possession and control of the land certificate in the year 1872 induced the district attorney to take out letters under the foregoing provision. The certificate was sold for $30 to one Foster, with whom, as alleged, defendants colluded. There were no debts and the purchase money was expended in the costs of the proceeding. The heirs had no knowledge of these proceedings until long afterwards. In a suit brought to declare a trust in the land located under the certificate, it was held that the judgment of the probate court could not be collaterally impeached. Mr. Justice Lamar, speaking for the court, said: “ The court therefore had before it in the petition, the death of Simmons within the parish, his intestacy, the possession of property, and the smallness of the estate. The order granting letters of administration was a judicial determination of the existence of all those facts.” He also cites with approval, and quotes extracts from, the'opinion of the Supreme Court of Louisiana in Duson v. Dupre, 32 La. Ann. 896, wherein it was expressly held that it could not be shown collaterally that the intestate had resided and died in the parish of St. Landry, in order to invalidate the appointment of a curator by the probate court of’ the parish of Orleans.

This brings us to the consideration of that part of the charge which submitted to the determination of the jury whether the judgment of the circuit court of the United States, based on the settlement between the parties, was fraudulently obtained.

This was also error. In the first place, there was no evidence upon which to found the charge. There was nothing but the fact that the cause was settled out of court. Suspicion is not proof. In the second place, the administrator had the right to collect the claim by suit or otherwise. If he colluded with the defendant and sacrificed the interests of those whom he represented, he might have been made to answer therefor; and he might have been removed and a suit brought in the court which rendered the judgment, to set it aside for fraud. Being, as we have held, a valid judgment on its face and binding upon all persons represented by, or in privity with, the administrator, it is entitled to full faith and credit in this jurisdiction, and cannot be collaterally impeached for fraud. Simmons v. Saul, 138 U. S. 439, 458; Christmas v. Russel, 5 Wall. 290, 303 ; Hanley v. Donoghue, 116 U. S. 1, 4. It is proper to add in connection with the admission of hardship in this case, that the plaintiff did not deny knowledge of the appointment of the administrator in North Carolina or of the pendency of the suit by him. It is apparent that he was informed of all that took place. Instead of appearing there, as he might have done, and obtaining control of that administration and prosecuting that suit, he preferred to continue his suit in this jurisdiction, and rely upon the nullity of the grant of letters in that.

For the errors complained of in the charges given and refused, the judgment must be reversed, with costs to the appellee, and the cause remanded for a new trial; and it is so ordered.