235 N.W. 181 | Mich. | 1931
This is an action for goods sold and delivered. At the time the indebtedness was incurred the defendant was administrator of the estate of Abraham Himelstein, deceased. After qualifying as such, he continued the business in which his intestate was engaged when he died. He purchased merchandise from the plaintiff on credit, failed to pay the account when due, and was sued personally in justice's court. He moved to dismiss on the ground that the justice's court had no jurisdiction. Judgment went against him. He appealed to the circuit, where his motion was renewed and denied. The case was then tried by the court without a jury, and resulted in a judgment for the plaintiff. The defendant has brought error, his principal ground for reversal being that the justice's court has no jurisdiction of this action because of section 14169, 3 Comp. Laws 1915 (3 Comp. Laws 1929, § 15982), the applicable part of which reads:
"No justice of the peace shall have cognizance of * * * actions against executors or administrators as such, except in cases specially provided by law," etc.
Except by order of the court, direction in a will, or by consent of all the parties interested, an administrator has no authority to continue the business which was being conducted by his intestate when he died. Having no such authority, it is his duty to liquidate the estate without undue delay.Swaine v. Hemphill,
In the instant case, defendant had no authority to continue the business. It was a personal undertaking altogether outside of his duties as administrator. He was not acting for his estate. He could not bind it by any of his contracts. His creditors *357
could not sue him in his representative capacity. Their only remedy would be in an action against him personally. Such is the action in this case. Is the justice's court without jurisdiction to hear it? The statute bars jurisdiction in cases only when the action is against the administrator "as such." It does not deny jurisdiction when the action is against the administrator personally for a debt which does not arise out of the administration of the estate but is wholly disconnected therewith. In determining the question of jurisdiction in such cases, the controlling fact is whether the subject-matter of the suit is connected with the administration of the estate, and whether the estate would be affected by the judgment. If it is in no way involved, there is no reason why the justice's court cannot take cognizance of the action. Such was the holding in Basom v. Taylor,
Other alleged errors do not require discussion. They are without substantial merit.
The judgment is affirmed, with costs to the plaintiff.
BUTZEL, C.J., and WIEST, CLARK, POTTER, SHARPE, NORTH, and FEAD, JJ., concurred.