Turner's Admx. v. Louisville & N. R. R.

110 Ky. 879 | Ky. Ct. App. | 1901

Opinion of the court by

JUDGE WHITE

Reversing.

The appellant as the administratrix of John E. Turner, brought this action for damages for the death of Turner while engaged in the service of appellee. The injury and death occurred in the state of Tennessee. Appellant was appointed administratrix in the county court of Boyle county. Appellee filed special plea to the jurisdiction of the court,, questioning the authority of the Boyle county court to appoint an administrator, and also questioning the jurisdiction of the court under section 73, Civ. Code Prac. Upon these questions the court, upon proof, adjudged that the Boyle County Court had jurisdiction to grunt administration, because it was shown there were debts due decedent in Boyle county, but the court then decided it had no jurisdiction of the cause of action because of section 73, Civ. Code Prac. This section reads: “Excepting the actions mentioned in section 75, an action against a common carrier, whether a corporation or not, upon a contract to carry property, must be- brought in the county in which the defendant, or either of several cfeffendants, resides; or in which the contract is made, or in which the carrier agrees to deliver the property. An action against such carrier for an injury to a passenger, or to other person or his property, must be brought in the county in which the defendant, or either of several defendants, resides; or in which the plaintiff or his property is. injured; or in which he resides, if he reside in a county into which the carrier passes.” The court concluding it had no jurisdiction of the action, dismissed same for want of jurisdiction, and hence this appeal.

We are of opinion from the facts shown that there were debts due decedent by citizens of Boyle county, and therefore the county court therein had jurisdiction to appoint an administratrix. The county court of Boyle county would not have jurisdiction to grant administration on decedent’s estate for the sole purpose of instituting this suit, as was held in Hall’s Adm’r v. Railroad Co. (19 Ky. L. R. 1529) (43 S. W. 698), as he was not at his death, a resident of Boyle county; but, being a resident of another State, and there being shown to be demands due him from residents of Boyle county, the county court could grant administration. In this conclusion we concur with the trial court. This action is in the name of Lena E. Turner, administratrix of John E. Turner. She alleges, and the facts appear to be, that at the time of the institution of this action she was a resident of Boyle county.. It is alleged that at the time of his death John E. Turner was a resident citizen of Boyle county, and that his injury occurred and death resulted'in the State of Tennessee; but we are of opinion that, as to the venue of the action, it is immaterial where decedent resided. That question would affect the administration, but not the venue of an action by his administratrix under section 73 supra. By this section it is provided that an action against a common carrier for injury to a passenger or other person must be brought in tihe county in which the plaintiff resides, if he reside in a county into which the carrier passes. If, then, the plaintiff in this action resides in B'oyle county, and the carrier passes through that county, the Boyle Circuit Court had jurisdiction. It is perfectly plain, and is well settled, that the plaintiff in this case is Lena E. Turner. This rule as to a plaintiff is well established and is universal where questions of citizenship arise on petitions for removal to the United States courts, and other like questions. John E. Turner is dead, and, of course, is not a plaintiff; and so, to ffx jurisdiction and citizenship, the personal representative is always held to be the plaintiff. We are of opinion that it appears that the plaintiff herein resided in Boyle county, and that under section 73, supra, the court bad jurisdiction of the action. For the reason indicated, the judgment is reversed and cause remanded for further proceedings consistent herewith.