53 Neb. 748 | Neb. | 1898
■ Ralph E. Gaylord, as administrator of the estate of George Jay, deceased, instituted this action in the court below to recover the sum of $5,000 damages on account of the death of his intestate, alleged to have been caused by the wrongful act, neglect, and default of the defendant. Subsequently,- Gaylord was removed as administrator of said estate by the county court, and one Charles S. Elgutter was appointed administrator in his place, who was substituted as plaintiff herein by the district court. One of the defenses raised by the answer was that no administrator of the estate of Jay was ever legally appointed. The court below directed a verdict for the defendant on this ground, which ruling is presented for review.
The doctrine is firmly established in this state that the appointment of an administrator cannot be assailed collaterally where the county court did not exceed its jurisdiction in granting the letters of administration. (Missouri P. R. Co. v. Lewis, 24 Neb. 848; Moore v. Moore, 33 Neb. 509; Bradley v. Missouri P. R. Co., 51 Neb. 653.) There is no room to doubt that the appointment of an administrator may be attacked collaterally where the record on its face discloses an entire want of jurisdiction by the county court to act in the premises. (Moore v. Moore, 33 Neb. 509; Davis v. Hudson, 29 Minn. 27; Gillett v. Needham, 37 Mich. 143.) Plaintiff’s counsel insist that
There is no dispute concerning the facts. It is disclosed that George Jay died in Douglas county on February 16, 1891, from injuries inflicted by one of defendant’s engines; that five days later a petition in due form alleging the essential jurisdictional facts was presented to the county court of said county by a person claiming to be the widow of said decedent, although as a matter of fact she was not his widow, nor in any manner interested in his estate as a creditor or otherwise; that upon the filing of said petition an order was entered by the county court assigning April 24, 1891, as time for hearing of the application, and notice thereof was given by publication to all persons interested as required by law; that on said date no hearing was had, nor was any adjournment taken, and no other or further steps were had in the matter until February 3, 1893, when an application, setting forth no jurisdictional fact, was presented' on behalf of the parents, brothers, and sisters of the decedent, to the county court of Douglas county, praying the appointment of an administrator of the estate of said George Jay, deceased; that no notice of this application was ever given, but on the day of the . filing thereof Ralph E. Gaylord was appointed administrator, who qualified as such and received letters of administration, and on May 5, 1894, the county judge of his own accord revoked the appointment of Gaylord, and Charles S. Elgutter was substituted in his place, who duly qualified as administrator. The petition for the appointment of the administrator was sufficient in form and substance, and the statutory notice of the time and place fixed for the hearing was given, so the county court upon the face of the record at one time had jurisdiction to grant letters of administration upon the estate of the decedent. (See the decisions of this court heretofore cited.) The contention of the defendant is that the county court was ousted of its jurisdiction by reason of
Awirmed,
