United States v. Hailey, 3 P. 263

United States v. Hailey

3 P. 263 | Idaho | 1882

MORGAN, C. J.

In this case suit was brought January 24, 1877, by the United States upon the bond of Yirgil S. Eggle-ston, upon which A. H. Eobie was surety. The defendant A. H. Eobie died some time previous to the November term of the district court for Ada county, 1878. At said term, at the suggestion of his death by attorneys for both parties, his administrator, John Hailey, was made a party to the suit, and appeared therein by bis counsel. On the tenth day of December, *251881, the cause came on for trial before the court and jury. The plaintiff having completed its evidence and rested, the defendant moved the court to direct the jury to find a verdict for the defendant on the ground that the evidence does not show that the claim in suit has been presented to the administrator for allowance or rejection. The motion was allowed by the court, and the jury, under the instructions of the court, rendered a verdict for the defendant.

The case was brought by appeal to this court. The only question in this ease is as to whether section 140, page 267, of the Eevised Laws of Idaho, hinds the United States the same as any other litigant. The claim never having been presented to the administrator, the matter as to limitation of time does not come in question. For the same reason there is no question of laches on the part of the plaintiff; therefore, section 131, page 265, has no bearing on the question at issue. Section 955 of the Eevised Laws of United States, cited by counsel, directs in what manner administrators may become parties in the United States courts; the district court of the territory not being such a court, it does not apply. (United States v. Mays, 1 Idaho, 763; Clinton v. Englebrecht, 13 Wall. 434; Hornbuckle v. Toombs, 18 Wall. 648.) Nor is there any question in this case as to the appearance of the administrator, he having voluntarily appeared both in person and by attorney. Section 140 of the Eevised Laws, before quoted, states: “If any action he pending against the testator or intestate at the time of his death, the plaintiff shall in like manner present his claim to the executor or administrator for allowance or rejection, authenticated, as in other cases, and no recovery shall be had in the action unless proof be made of the presentation required by law.” In eases in the United States courts the practice in all cases is regulated by the laws in force in the states or territories wherein such suit is pending. (United States v. Mays, supra; Clinton v. Englebrecht, supra; Hornbuckle v. Toombs, supra; Reynolds v. United States, 98 U. S. 154; United States v. Eggleston, 4 Saw. 201, et seq., Fed. Cas. No. 15,027; McGill v. Armour, 11 How. 142.) The administrator is exclusively bound to account for all the assets which he receives, under and by virtue of his administration, to the court from which he derives *26his authority. (Vaughan v. Northup, 15 Pet. 6; Yonly v. Lavender, 21 Wall. 279, et seq.) When the United States is compelled to come into court to enforce its rights it must come in as any other suitor. (Mitchel v. United States, 9 Pet. 743.) And the proceedings in such action must be in accordance with local laws in force at the time in the state or territory where the suit is commenced. In this case the probate laws in this territory must govern and determine the method of procedure to obtain judgment. (111; Bank v. Horn, 17 How. 157; Pulliam v. Osborne, 17 How. 475, 476.) A right of priority of payment on the part of the United States is not involved in this cause, and, if it was, the right of the United States to priority given by law is recognized by section 239 of the Probate Act, Revised Laws of Idaho.

Judgment of the court below must therefore be affirmed.

Buck, J., having been of counsel for appellant in the court below, did not sit in the hearing of this case.