Wilcox v. District Court of Salt Lake County

272 P.2d 157, 2 Utah 2d 227, 1954 Utah LEXIS 180

• Court: Utah Supreme Court
• Decided: June 22, 1954
• Docket: 8114
• Status: Published

Opinions

HENRIOD, Justice.

This case arises out of a petition for issuance of a writ of prohibition, which we issued temporarily and which we now make permanent with costs to petitioner.

In 19Z8 the District Court of Salt Lake County entered a divorce decree in favor of Edna Abbott Wilcox and against Don E. Wilcox, included in which was an award of $30 per month as support for a minor child. Don E. Wilcox died in 1953 in California and petitioner herein was appointed his executrix. Edna Abbott Wilcox, on petition, caused to issue out of the District Court in said divorce action, an order to show cause why said executrix should not be substituted as defendant in said divorce action and why judgment should not be entered against her, as such, for the amount found due for the unpaid support money. Personal service of the order was effected in California. She appeared specially and assailed the jurisdiction of the Utah Court either to substitute her as defendant or render a judgment against her. We believe and hold that her special plea is well taken.

The Conflicts Restatement, Sec. 512, p. 617 states that “no action can be maintained against any administrator outside the state of his appointment upon a claim against the estate of the decedent,” and the commentator then asserts that the rule maintains although the action was commenced against the decedent while alive and where the court had jurisdiction of his person.

We adhere to the principle enunciated in the Restatement which appears to govern the case before us. It seems generally to be conceded that a personal representative of a deceased person can sue or be sued, or can be a party to an action or proceeding in his official capacity as representative, only in the state wherein he was appointed, and that his role as extended personality of the deceased does not exist extraterritorially but only within the four corners of the state of his appointment,¹ except, as here, where, by special appearance or extraordinary writ the court’s jurisdiction to entertain the litigation itself is attacked.

McDonough, c. j., and crockett and WADE, JJ., concur. WOLFE, C. J., being disqualified, did not participate in the hearing of this cause.

1 . Restatement, Conflict of Laws, supra; Schouler, Wills, Executors and Administrators, Vol. II, 5th ed. (1915), Secs. 1164 and 1173; “Conflict of Laws,” by Cheatham, Goodrich, Griswold and Reese, 3rd ed. (1951), notes pp. 849 and 851; McMaster v. Gould, 1925, 240 N.Y. 379, 148 N.E. 556, 40 A.L.R. 792; Winbigler v. Shattuck, 1920, 50 Cal.App. 562, 195 P. 707.