Castigliano v. Great Northern Railway Co. , 129 Minn. 279 ( 1915 )

Per Curiam.

Tbis is an appeal by tbe intervener from an order sustaining a demurrer to bis complaint in intervention.

One Palazzolo was killed on September 13, 1912, in Oarlton county, Minnesota, while in tbe employ of tbe defendant, under circumstances giving a cause of action for bis death. He was a resident of St. Louis, Missouri.

On September 30, 1912, tbe probate court in Missouri appointed one Licavoli general administrator of tbe estate of Palazzolo.

On October 14, 1912, more than 30 days after tbe death of Palazzolo, tbe plaintiff Oastigliano, tbe Royal Italian Consular Agent, having proper jurisdiction, was appointed special administrator by tbe probate court. See G. S. 1913, § 7287 (R. L. 1905, § 3696). On October 15, tbe plaintiff commenced this action against tbe defendant, tbe intervener being bis attorney.

Tbe order of tbe probate court appointing tbe plaintiff special administrator was not appealable. G. S. 1913, § 7293 (R. L. 1905, § 3702). Licavoli filed objections to tbe appointment of Oastigliano as general administrator. Tbe probate court by its order appointed him. Upon appeal to tbe district court such order was reversed.

On October 22, 1912, Licavoli settled with tbe Great Northern for tbe death of Palazzolo and was paid $2,350, for which be accounted to tbe widow and infant child, who were tbe sole beneficiaries of tbe deceased.

After tbe judgment of tbe district court reversing tbe probate court, tbe intervener filed bis complaint in intervention, claiming a lien for bis compensation alleged to be tbe value of one-fourth of tbe settlement and which was alleged to be tbe amount agreed upon with Oastigliano. Tbe demurrer of tbe defendant to this complaint was sustained and tbe appeal is from tbe order sustaining it.

Tbe proceeding resulting in tbe appointment of Oastigliano- as special administrator on October 14, 1912, was with jurisdiction. G. S. 1913, § 7205. As special administrator Castigliano bad tbe right to maintain a suit to recover for Palazzolo’s death. Jones v. Minnesota Transfer Ry. Co. 108 Minn. 129, 121 N. W. 606. By G. S. 1913, § 4955 (R. L. 1905, § 2288), an attorney is given a lien for bis compensation, whether tbe agreement therefor be express or implied “upon tbe cause of action from tbe time of tbe service of tbe summons therein.” Summons was served October 15, 1912. Licavoli could have commenced an action in Minnesota for tbe death of Palazzolo upon filing a copy of bis appointment in tbe probate court; or be could have settled with the Great Northern without action; or be could have brought an action in another state, Missouri, for instance, if lie could get jurisdiction of the Great Northern there, and if the Missouri court would have enforced liability under the foreign statute. He was not obliged, so far as appears, to come to Minnesota at all.

Oastigliano, a special administrator, could sue and did sue in Minnesota. The prohate court had jurisdiction to appoint Oastigliano special administrator of Palazzolo, and the district court had jurisdiction of the action to recover damages for his death. The lien law quoted was therefore applicable • defendant settled the claim with notice of the attorney’s rights and the intervener is entitled to reasonable compensation. His contract with the special administrator is not binding upon the question of amount.

Order reversed.