Jordan v. Chicago & Northwestern Railway Co.
104 N.W. 803
Wis.
1905
Check Treatment
Oassoday, O. J.

Under the stipulation entered into on the-trial, the only question here for consideration is whether the plaintiff was lawfully appointed administrator of the estate-of the deceased and had the legal right to bring this action. There is no claim that the plaintiff should have been appointed such administrator by reason of being one of the persons referred to in sec. 3807, Stats. 1898, nor that the notice-prescribed in sec. 3808 of the Statutes was ever given. The-plaintiff claims, and the trial court in effect found, that the-appointment was properly and regularly made by the county court upon a sufficient petition under sec. 3819, Stats. 1898. Omitting words not applicable here, that section declares that:.

“When any person shall die intestate, leaving property in-this state, but leaving no widow, surviving husband or next: *587of kin, known to the county court, living therein, . . . the county court having jurisdiction of such estate . . . shall, upon its own motion or upon the application of the public administrator, if such court shall deem necessary, grant administration of such estate . . . to the public administrator, and it shall thereupon be lawful for the public administrator to take possession of the property and effects of the intestate,, . . . and protect and preserve the. same and to proceed with the administration of such estate and with the care and management of the estate, . . . until administration . . . thereon shall, upon proper application of-some person entitled to apply therefor, be granted to some other person. If such intestate ... be a nonresident, administration ... of his estate shall be granted to the public administrator of the county where the property may be found.”

And then, after providing for the revocation of the appointment of such public administrator, the section provides that “such estates shall be administered by the public administrator in the same manner as other estates, except as otherwise-provided herein.” Sec. 3819, Stats. 1898. As held by this court, this section “obviously provides merely for a temporary-situation, and authorizes appointment of the public administrator only until those having lawful right under sec. 3807 shall make proper application.” Welsh v. Manwaring, 120 Wis. 377, 379, 380, 98 N. W. 214. As indicated, “the county court having jurisdiction of such estate” may, “upon its own motion or upon the application of the public administrator, . . . grant administration of such estate ... to the public-administrator.” Of course, such appointment may properly be mado without notice.

The contention is that the county court had no jurisdiction to make such appointment, because the intestate did not die “leaving property in this state.”| In other words, it is-claimed that it appears from the evidence taken that the intes^ tate left no real estate in Wisconsin, and that, in the absence-of an estate therein, the county court had no jurisdiction to-make the appointment. The records of such appointment by the county court are in evidence; but there is no indication. *588that such appointment was ever set aside by tlie county court ■or any appeal taken therefrom to the circuit court. But counsel for the defendant contends that the authority of the county court to make such appointment is open to collateral attack for want of jurisdiction by reason of the absence of any estate in Wisconsin left by the intestate. In support of such contention counsel cite the decisions of this court holding that “the only jurisdiction which the county court has in respect to the administration of estates is over those of dead persons.” Melia v. Simmons, 45 Wis. 334, 30 Am. Rep. 746; Wis. T. Co. v. Wis. M. & F. Ins. Co. Bank, 105 Wis. 464, 81 N. W. 642. See, also, D'Arusment v. Jones, 4 Lea, 251, 40 Am. Rep. 12; Thomas v. People, 107 Ill. 517, 47 Am. Rep. 458; Scott v. McNeal, 154 U. S. 34, 14 Sup. Ct. 1108; Cunnius v. Reading School Dist. 198 U. S. 458, 25 Sup. Ct. 721. The distinction between such a case and the one at bar is pointed out by Maesiiall, O. L, in an early case, and expressly sanctioned by some of the cases above cited. Griffith v. Frazier, 8 Cranch, 9, 23. It is there said:

“In the common case of intestacy it is clear that letters of administration must be granted to some person by the ordinary [having the power of our county court], and, though' they should be granted to one not entitled by law, still the act is binding until annulled by the competent authority, because he had power to grant letters of administration in the case. But suppose administration to be granted on the estate of a person not really dead. The act, all will admit, is totally void. . . . The case, in truth, was not one within his jurisdiction. It was not one in which he had a right to deliberate. It was not committed to him by the law. And although one of the points occurs in all cases proper for his tribunal, yet that point cannot bring the subject within his jurisdiction.”

This court, following the highest courts of England, has held, on direct appeal from the county court, that an order ■or judgment of a Louisiana court appointing an administrator ■of the estate of a deceased person, though based on a petition *589alleging tbat the deceased died while a resident of that state-leaving property therein, was not conclusive as to the domicile-of the deceased and did not preclude a court of this state from talcing jurisdiction of proceedings to probate the will of the deceased and administer so much of his estate as was actually-located in Wisconsin. Frame v. Thormann, 102 Wis. 653, 667-671, 79 N. W. 39, affirmed 176 U. S. 350, 356, 20 Sup. Ct. 446; De Mora v. Concha, 29 Ch. Div. 268, affirmed L. R. 11 App. Cas. 541. See, also, Overby v. Gordon, 177 U. S. 214, 223, 224, 20 Sup. Ct. 603. Of course, it frequently occurs that an intestate person leaves property located' in 'different states. Where that is the case there can be no doubt that the appropriate court of each state where such property is located may, upon proper proceedings being had, grant letters of administration of so much of the estate as is therein located.

The question here presented is whether the appointment of' the ph^ntiff as administrator by the county court is open to collateral attack. The county court, upon petition filed, certainly had jurisdiction to determine whether the deceased left any property in the state of Wisconsin. Having such jurisdiction of the subject matter in such proceeding in re to, its determination could not properly be treated as a nullity nor-be open to collateral attack. VanEleet, Collateral Attack, §§ 527, 573, and cases there cited. In the last of these sections it is said that “the statutes concerning the appointment of administrators authorize it to be made in certain cases in any county where the decedent left assets. On the presentation of a petition asking for an appointment in such a case, it becomes a question of fact, to be determined from the evidence, whether or not the decedent did leave assets in that county, and an erroneous decision is conclusive in a collateral, proceeding.” See 11 Am. & Eng. Ency. of Law (2d ed.) 785; Pick v. Strong, 26 Minn. 303, 3 N. W. 697; McCooey v. N. Y., N. H. & H. R. Co. 182 Mass. 205, 65 N. E. 62; *590O’Connor v. Huggins, 113 N. Y. 511, 21 N. E. 184; Johnson v. Johnson’s Estate, 66 Mich. 525, 33 N. W. 413; Brawford v. Wolfe, 103 Mo. 391, 15 S. W. 426; Dunn v. German-Am. Bank, 109 Mo. 90, 18 S. W. 1139. In this last case it was expressly held that “the right of a public administrator to take charge of an estate cannot be collaterally questioned.” To the same effect: Hoes v. N. Y., N. H. & H. R. Co. 73 App. Div. 363, 77 N. Y. Snpp. 117. In so far as this court has spoken on similar subjects of jurisdiction the same is in harmony with the authorities cited. Tallman v. McCarty, 11 Wis. 401; Portz v. Schantz, 70 Wis. 497, 36 N. W. 249; Swan v. Norvell, 107 Wis. 625, 83 N. W. 934. We must hold that the appointment of the plaintiff as such administrator was conclusive on the defendant in this action. Besides, the ■evidence is sufficient to support the finding that the deceased left property and an estate within Kenosha county to be administered therein.

By the Court. — The judgment of the circuit court is affirmed.

Dodge, J.

Upon the ground that the evidence shows that decedent had property in Kenosha county I concur in the affirmance of the judgment, 'but I cannot yield assent to the doctrine that the exercise of jurisdiction to appoint an administrator by the county court concludes all collateral inquiry as to whether it had jurisdiction to do so. To so hold is to adopt the sophistry which was exploded by PaiNE, J., with such dignity of ridicule in Rape v. Heaton, 9 Wis. 328, adopting the views expressed in Starbuck v. Murray, 5 Wend. 148. Where the very existence of a fact is essential to the power of a court to consider a matter, that it cannot have such piower to consider when the fact does not exist seems an axiom. To concede the necessity of existence of the fact as a condition to the court’s deciding at all, and then to hold that, though it does not exist, yet the court’s decision that it *591does in effect creates tbe fact, is magic. It endows courts witb omnipotence. It creates something ont of nothing. It sanctions the logic of the man who would lift himself by pulling on his own boot straps. The power of the state of Wisconsin to exercise any control, either by its courts or other branches of government, over the property left by a decedent, must depend on either the fact of his residence here or the presence of effects within the state. Moyer v. Koontz, 103 Wis. 22, 19 N. W. 50; Pennoyer v. Neff, 95 U. S. 714; Cunnius v. Reading School Dist. 198 U. S. 458, 25 Sup. Ct. 721. In absence of those facts, it cannot confer on any one authority to meddle with such decedent’s property, to take it into possession, sell it, or give it away. The acts of one so attempted to bo authorized must be entirely futile and ineffective whenever questioned by the government having lawful jurisdiction over such property or by its administrative ■agents. Hence the payment of money to one appointed administrator without jurisdiction will not protect appellant against an administrator duly appointed. So I cannot doubt that appellant had right to question whether plaintiff was administrator at all.

That a jurisdictional fact must actually exist before any decision of a court can be conclusive has been declared repeatedly by this court; and the illogic of those courts, some of which are cited in the majority opinion, which hold that a finding that such fact exists suffices, has been reviewed and repudiated. Rape v. Heaton, supra; Pollard v. Wegener, 13 Wis. 569; Carr v. Comm. Bank, 16 Wis. 50, 52; St. Sure v. Lindsfelt, 82 Wis. 346, 52 N. W. 308; Toepfer v. Lampert, 102 Wis. 465, 469, 78 N. W. 779; Johnson v. Turnell, 113 Wis. 468, 472, 89 N. W. 515. The same principle has been declared by the supreme court of the United States, which'in this field is our superior, for the enforcement of a judgment rendered without jurisdiction is a taking of property without due process of law. Rose v. Himely, 4 Cranch, *592241, 269; Griffith v. Frazier, 8 Cranch, 9; Thompson v. Whitman, 18 Wall. 457; Scott v. McNeal, 154 U. S. 34, 45, 14 Sup. Ct. 1108; Bell v. Bell, 181 U. S. 175, 178, 21 Sup. Ct. 551; Cooper v. Newell, 173 U. S. 555, 19 Sup. Ct. 506; Andrews v. Andrews, 188 U. S. 14, 23 Sup. Ct. 237. New York lias repeatedly applied the same doctrine, following Slarbucle v. Murray, supra, the reasoning of which this court deemed unanswerable. Ferguson v. Crawford, 70 N. Y. 253; O’Donoghue v. Boies, 159 N. Y. 87, 98, 53 N. E. 537,. and cases cited; Hoes v. N. Y., N. H. & H. R. Co. 173 N. Y. 435, 66 N. E. 119. The following are some of the’ jurisdictional facts, absence of which has been held to preclude jurisdiction and render judicial action void, even collaterally considered, although in such original proceedings the fact had been found and recited, viz.: The fact of service of process (Rape v. Heaton, supra; Pollard v. Wegener, supra; Carr v. Comm. Bank, supra); the fact of actual apr pearance to the action and of' authority of attorney (Christ v. Davidson, 116 Wis. 621, 93 N. W. 532; Cooper v. Newell, 173 U. S. 555, 19 Sup. Ct. 506); the fact of death before administration (Melia v. Simmons, 45 Wis. 334; Wis. T. Co. v. Wis. M. & F. Ins. Co. Bank, 105 Wis. 464, 81 N. W. 462; Griffith v. Frazier, supra; Scott v. McNeal, supra); the fact of domicile in divorce (St. Sure v. Lindsfelt, 82 Wis. 346, 52 N. W. 308; Andrews v. Andrews, supra; Bell v. Bell, supra); the legal sufficiency of publication proceedings (Beaupre v. Brigham, 79 Wis. 436, 48 N. W. 596); existence of property in state of the judgment (Renier v. Hurlbut, 81 Wis. 24, 50 N. W. 783) ; seizure of property by sheriff (Toepfer v. Lampert, supra); fact of capture and location of property in prize condemnation (Rose v. Himely, supra); location of a trespass (Thompson v. Whitman, supra); domicile of a decedent (Frame v. Thormann, 102 Wis. 653, 79 N. W. 39; S. C. 176 U. S. 356, 20 Sup. Ct. 446; Overby *593Gordon, 177 U. S. 214, 20 Sup. Ct. 603); location of property in administration proceeding (Overby v. Gordon, supra; Hoes v. N. Y., N. H. & H. R. Co., supra).

There certainly is no distinction between such facts and that of the existence of property within a state, and none is suggested either by counsel or by the opinion filed on behalf of the court in this case. I do not find that the citations in that opinion, with one exception, at all support the holding that a jurisdictional fact cannot be denied and examined in collateral proceedings. Some are to the effect either that, if the court has jurisdiction, the judgment cannot be attacked collaterally, which is, of course, begging the present question; others declare that the recitation of the jurisdictional fact in the record establishes it prima facie — a rule with which I not only agree, but would enlarge to the extent that the mere judgment of a superior court of general jurisdiction prima facie establishes every jurisdictional fact not expressly contradicted by the record. The exceptional case is O'Connor v. Huggins, 113 N. Y. 511, 21 N. E. 184, wherein it is said' that all jurisdictional facts are concluded against collateral attack by a recitation of them in the record; but it supports this dictum by citation and quotation of argument from Roderigas v. E. R. Sav. Inst. 63 N. Y. 460, holding that the fact of death is so concluded and cannot be contradicted. Obviously the O'Connor Case is the logical deduction from the Boderigas holding, and vice versa. If the record can conclude one jurisdictional fact it can another. No more omnipotence is necessary to kill a live man than to create property where there is none. However, the former has been held impossible in Wisconsin, and neither the Roderigas Case nor the logical deduction from it in O'Connor v. Huggins is very cogent authority here. I do not understand that either is authority in New York, for I find that Roderigas v. R. R. Sav. Inst. 63 N. Y. 460, is spoken of as that “much-discussed and *594overruled case” in Matter of Killan, 172 N. Y. 557, 65 N. E. 561. In my opinion tbe question whether there existed in Wisconsin any property of decedent was open to denial by defendant and to trial in the present action.