*1 tribunals, fore courts or administrative Remanded with further directions to take game tricks, proceeding proceedings not a opin- but is not inconsistent purposed to find the truth on contested No ion. costs awarded. law correctly apply
issues of to fact and privilege thereto. WADE, both the C. McDONOUGH and all duty to before it Commission Jr., JJ., concur. competent of the a mate- evidence to necessary
rial bearing on the issues HENRIOD, J., concurs in the result. making consider in And award. to, nothing
what parties entitled
more nor less. prerogative
Upon remand it
the Commission either to make a determina- light the evidence in the court, decision of this it deemed the SEELY, Paulmina Nick Administratrix justice require, interests to so to order Seely, the Estate of Jacobsen E. supplemental hearing Appellant, and hold a to allow Plaintiff and present parties to additional evidence. On v. hand, it the other must be conceded that it Amelia G. COWLEY, Administratrix Cowley, Estate of James H. aka James responsibility of the Commission Hall and James Defendant proceed disposition some make Respondent. plaintiff’s application award,2 for an are somewhat at we a loss to understand Supreme
why regardless it did not do Court interposed by plaintiff. motions Oct. 1961.
As to the of laches: it is
sufficient to call attention to the facts which the claimed
under laches occurred principle legal “laches in
significance delay, is not mere delay but disadvantage another,”3
that works a do not see existing here. 2. Mawhinney Ibid. Jensen, 1951, 232 P.2d City, for
King & Lake Hughes, Salt *2 Bowen, Nebe- Ray, Quinney Albert R. & ker, City, respondent. Salt Lake
WADE, Chief Justice. attempts
This arises out three by appellant against to commence a suit Cowley recover Estate of H. James damages alleged wrongful for the Seely appellant’s husband, E. Jacobsen re- negligence caused the willful spondent Cowley’s husband in an automobile Cowley accident driver Seely passenger. was The automobile accident occurred February 14, 1954, and' and both driver passenger his were killed in that accident day. Cowley on that was resident Cowley, respond- County, and Uintah Mrs. ent, administratix of court of that October, 1955, county on June appellant application caused to be made appointment of an administrator Emery in of the Estate of James Utah, complaint County, against and filed Subsequently January, appel- him in respondent Seely Cow- discovered lant administratrix ley Cowley’s and filed Estate am. H. of James * 29, 1956, to complaint amended “Effect of absence state. —* June respondent a cause show after a cause of action accrues attempted serv- [against departs person] he state, upon her on ice of summons the time of his June part Laramie, Wyoming, where the time com- had moved after mencement action.” as administratrix. to be wheth- determined is
Upon stipulation of counsel er absence from plaint as amended was dismissed Novem- since ber, complaint 1959. Another filed there is no only doubt that actions 1958, but no was ever served in summons appellant voluntarily not heretofore dis- complaint Finally case. in 1960 a missed her was than commenced more ac- filed in which she appellant’s death of cepted Respondent, service summons. husband.
Mrs.
moved to have
is respondent’s contention that
prejudice
dismissed with
on the
*3
provisions
Section
of
78-12-35
not
do
provisions
that
the action was barred
the
ply
personal
representative
a
because the
which
78-12-28(2)
limitation of Section 78-12-28(2)
a
states
cause
for death is barred
though
mences to run even
no administrator
years.
not
The court
if
within two
appointed
is
the wrongdoer’s
for
estate.1
granted
from
the
and this
is
motion
These
judgment dismissing
the
cases
that
this
held
the
limitation
the
prejudice.
action
time
an
wrongful
for
death
be commenced
could
was a
upon
limitation
Appellant
the court
contends
erred
liability
the
upon
as well as
remedy
the
provisions
applying the
of Section 78-12-28
therefore,
period
the
of time in which the
immediately
(2) because
almost
action could be commenced could not be
as administratrix
extended even
no
administrator
the
absented herself
from
state of Utah
appointed.
pointed
been
It is
since,
out in
has been out
ever
these
State
therefore,
applied
the court should have
authorities that an administrator to sue or
provisions
appointed
the
Section
be sued could be
within the time
which reads:
bring
However,
1953
limited to
the action.
Baningoso,
5;
Furber,
Baker v.
134 Conn.
58 A.2d
Bickford v.
271 Mass.
170
N.E.
70
A.L.R.
lack
stat
Having
that our
the
determined
is not
the instant
problem
case the
is not
wrongful
ute
deaths
an administrator.
appointment of
could a
liability,
limitation
re
appointed
An
who
the
administratrix was
in mains
provisions of Sec
as to
have been
time
whether the
sued within the
appointed
duly
tion 78-12-35 apply
Section 78-
12r28(2).
personal representative
of an estate.
problem
a
that
where
appellant’s contention
who can
appointed
be sued has been
is dif
since an
ferent
that in
no
from
which
the wrongdoer’s
her absence
appointed.
has
been
instance
the latter
the state
the
limitation
right
our
code gives
as
suit
a creditor
if
absence would have
apply
estate.
administration
letters of
instead of
apply
preference
those
held
who
not
authority
As
not
do
court has
our
at
case
least within three months.4 In the
like
upon
authorities
which
personal representative
of a
has been
rem
who
liability,
relies that
well as the
ap
the state
edy,
two-year period,
absenting himself from
is limited to the
Smelting
remedy
no
pellant
absolute
cites
Platz
International
Company.2
held
creditor is
Absence from
entitled.
In that
this court
case
among
grounds
for revoca
listed
which tolled
under the
tion of letters of administration
the statute of limitations in favor of
U.C.A.1953,
enemy
Section
it
likewise tolled
although might
it
suffi
a reason deemed
personal representative
be
of the deceased.
cient
a court
thus
be
inclined
view that
We
authority
that section.
removal under
authorities are
no aid in
Nevertheless,
such a
would
question.
whether
determining our
the two-
Had
sufficient
a court would
wrongful
be deemed
de
year
limitation
action
pend
upon
discretion of that court..
court
considered
to be a limita
court’s discretion cannot
liability
Although a
remedy,
as well
used,
before
arbitrarily
it could well be
precluded
have been
alien heir would
years-
two-year
was made the two
her action after
determination
bringing
*4
elapsed
person
and a
who'
statute toll would have
period even
deprived
action would thus
good cause of
time in favor
of an
ing per
unless the
rights
enemy.
U.C.A.1953.
4.Section
tive of an himself from absents estate who state and court erred
.granting the dismissal of the action on that the action had not been provided
within Section 78-
12-35, U.C.A.1953.
Reversed. Costs to CO., THERMOID WESTERN Norman McDonough Inc., Thompson Co., Lumber & Hardware crockett, jj„ Poultry Cooperative, Utah & Farmers Utah n concur. Co., Co., Lumber and Stokermatic on their persons, own behalf and on behalf other corporations, similarly and associations sit HENRIOD, (dissenting). Justice uated, Appellants, Plaintiffs Reluctantly I opinion dissent. The main predicated upon fallacy pres- COMPANY, UNION PACIFIC RAILROAD qualified ent and that The Denver and Rio Grande Rail Western Company, road The Western Pacific Com .78-12-35, 2-year tolled the limita- pany Bamberger Company, Railroad (78-12-28). tions The record re- Respondents. Defendants everyone flects and admits that the adminis- tratrix left state after her Supreme Court of Utah. pointment and established a domicil else- where, up Sept. 19, giving her residence or domicil Then became in- there she disqualified eligible and to act as adminis- 75-4-4(2).
tratrix under Thereafter it was upon plaintiff
incumbent to seek letters of
n administration under 4—2, where a “cred- 75— * * person having
itor other claim
:shall be entitled to letters.” Not having