Rogers v. Mellon , 43 Idaho 466 ( 1927 )

This case was formerly before this court and judgment for respondent was reversed. (Rogers v. Davis, 39 Idaho 209,228 P. 330.)

Assignments of error 1 to 14, inclusive, and 21, are based largely upon the issues involved in In re Barr, ante, p. 400,252 P. 676, also before this court, decided January 6, 1927. From the conclusion reached in that case it appears that for the purposes of this action E.J. Rogers was a duly and legally acting administrator of the estate of Harry Barr, and whose appointment by the probate court of Power county because of lapse of time had become final and not subject to question. It was an irregularity for E.J. Rogers, as administrator of the estate of Harry Barr, deceased, under appointment by the probate court of Bannock county, to be added as a party plaintiff and appellant assigns as error the refusal of the trial court to decide, preliminary to the trial of the case, which appointment, if either, of the two probate courts was valid, and also assigns as error the giving of instruction number 7, which was to the effect that Rogers was the duly appointed, qualified and acting administrator of the estate of Harry Barr and that said action was commenced within the statute of limitations. Appellant's position in this matter is inconsistent. It was immaterial, so far as the jury was concerned, whether the administrator was appointed by the probate court of Power county or Bannock county, and if appellant was correct in urging that the trial court should have, preceding the trial, decided which was the valid appointment, the question involved in that phase of the controversy was one of law, and since before the conclusion of the trial the jury was instructed that the plaintiff had lawful authority to bring the action, we do not see how appellant was prejudiced since it appears that the same defense could have been and was interposed irrespective of which appointment was valid.

The probate judge of Power county, if he was disqualified from any cause to further act in the proceedings, had the right under C. S., sec. 7541, to transfer the action to the probate court of Bannock county. There is no showing of prejudice to appellant because of the further proceedings in the probate court of Bannock County nor were they necessarily inconsistent with the proceedings in Power county, since at the time of the transfer the probate court of Power county had jurisdiction of the subject matter. The allegations of the complaint setting up the appointment of two administrators, in view of our conclusion in In re Barr, supra, were surplusage since there was in fact but one administrator and one cause of action involved in the entire controversy. The present suit is a bar to any further suit involving a claim for the wrongful death of the deceased and there is no showing of how appellant was in any way prejudiced by this phase of the situation. There was one party plaintiff necessary to the prosecution of this case, namely, E.J. Rogers, administrator of the estate of Harry Barr, deceased, and one cause of action. This necessary party was before the lower court and this cause of action, and this only, was tried by the court and jury.

There is no material difference in the evidence introduced in this case and that in the former appeal, wherein this court passed upon the sufficiency of the evidence adversely to appellant's contention. That decision is of course binding upon this court and the judgment should be affirmed.

I am authorized to say that Wm. E. Lee, C. J., joins me in this dissent.

(July 28, 1927.)