125 F. 638 | U.S. Circuit Court for the District of Indiana | 1903
Plaintiff was duly appointed and qualified as administratrix of the estate of Bertha C. C. Schneider, deceased, by the probate court of La Salle county, Ill. On November 19, 1901, while still acting as such administratrix, she filed her two claims against her decedent’s estate, one in the sum of $550, for moneys paid out by her for her intestate, and the other in the sum of $7,200, for services as nurse and for care and maintenance. On November 25, 1901, the probate court appointed Edgar Eldredge administrator pro tern, in both causes. On November 26, 1901, William F. Mayer appeared as an heir at law of claimant’s decedent, and filed his objections to the allowance of said claims, setting up that he had an interest in the estate which would be affected by the allowance or rejection thereof. On December 10, 1901, claimant was permitted by the court to increase her demands in the sum of
The cause now comes on to be heard upon motion to remand. In support of the motion, plaintiff insists:
(1) That because the suit is founded upon a claim filed originally in the probate court it does not come within the meaning of the statute granting a removal. I do not deem this point well taken, and it is overruled.
(2) That the administrator pro tem. and the plaintiff both being citizens of this state, there is no diversity of citizenship. It appears that defendant Mayer is now, and was when the claim was filed, and also at the time of filing the petition for removal, a nonresident, and a citizen and resident of Columbus, Ohio. Was the question of diversity of citizenship to be determined upon the citizenship and residence of the administrator pro tem? Under the statute of Illinois, any one aggrieved by the order of a probate court allowing a claim has the right to appeal. Section 72 of the administration act of Illinois (Hurd’s Rev. St. 1899, c. 3) provides that, “when an administrator or executor presents a claim against the estate of his decedent or testator, the court shall appoint some discreet person to appear and defend for the estate, and upon the hearing the court or jury shall allow such demand or such part thereof as is legally established. * * * Should any executor or administrator appeal in such case, the court shall appoint some person to defend as aforesaid.” While this, by its terms, applies only to appeals by the claimant, executor, or administrator, it determines the status of the administrator pro tem. His duties would seem to end with the probate court. However that may be, in the case of Pfirshing v. Falsh, 87 Ill. p. 260, the court holds that, under the statute allowing any one aggrieved an appeal, any person, other than the administrator appealing, may prosecute the appeal in his own name, and need not use the name of the administrator. The appeal in this case seems to have been docketed by the clerk of the circuit court in
(3) The claim that both of the heirs of claimants decedent should join in the petition for removal is not well taken, and is overruled.
(4) It is urged that Mayer did not file his petition to remove the cause in apt time. Under the removal act of March 3, 1887, c. 373, 24 Stat. 552 [U. S. Comp. St. 1901, p. 508], and Act Aug. 13, 1888, c. 866, 25 Stat. 433 [U. S. Comp. St. 1901, p. 508], the cause was removable from the state court having original jurisdiction. Clearly the probate court had original jurisdiction in that matter, as had also the circuit court of La Salle county and this court. Having gone to trial in the probate court, and the case having been disposed of upon the merits, Mayer has lost his right to bring the cause to this court. He is no more a party to the proceeding now than he was at the time he filed his objection in the probate court to the allowance of the claim. The trial in that court was the full equivalent of the words, “any time before the defendant is required by the laws of the state or rule of the state court * * * to answer or plead.” There could be no removal from the circuit court, after such a trial, even though the statutes provide for a trial de novo. Craigie v. McArthur, Fed. Cas. No. 3,341, decided by Judges Nelson and Dillon; Hess v. Reynolds, 113 U. S. p. 80, 5 Sup. Ct. 377, 28 L. Ed. 927 (arguendo). The cases seemingly holding to the contrary, so far as I have been able to ascertain, are based upon the theory that the trial body was not a court of record. Cases cited and turning upon the right of removal on account of prejudice are not in point. The probate court of Illinois is a court of record. The case at bar was tried by a jury.
The motion to remand is granted.