
    Mary Weidner et al. v. Charles Rankin et al.
    
      1. The right to bring an action under the act of March 25, 1851, for the death of a person caused by wrongful act, neglect or default, is vested in the personal representatives of the deceased; and the -widow and next of kin can not maintain such action in their own names.
    
      ‘2. The amount recovered in such action is for the exclusive benefit of the widow and next of kin, and is to be distributed among them in the proportions provided by law in relation to the distribution of personal estates of persons dying intestate. The risk of ascertaining the persons entitled to the benefit of the recovery, and the duty of making the distribution, are not imposed on the defendant, but on the personal representatives of the deceased.
    3. A good petition must contain a cause of action in favor of the plaintiff, and where it does not show such cause of action, the objection is not waived by the failure of the defendant to demur, although the facts stated may constitute a cause of action in favor of a person not a party to the suit.
    Motion for leave to file a petition in error to reverse the judgment of the District Court of Montgomery county.
    The original action was brought by the plaintiffs, in error, who are the widow and children of Frederick Weidner, deceased, in the Court of Common Pleas of Montgomery county, to recover damages for the negligence of the-defendants in causing the death of said Frederick.
    On issue joined, a trial was had, which resulted in a verdict and judgment for the plaintiffs.
    Afterward, at the same term, the defendants moved the court to vacate the judgment; and, notwithstanding the verdict, to render judgment for the defendants, on the ground that the plaintiffs were not authorized to sue on the cause of action set out in the petition.
    The motion was overruled. And it being made to appear that during the pendency of the suit Mary Weidner, one of the plaintiffs, had been appointed administratrix of said Frederick, deceased, she was ordered by the court, on her motion, to be made a party plaintiff as such administratrix.
    To the action of the court the defendants excepted.
    On error, the District Court reversed the judgment and dismissed the suit.
    The present proceeding is instituted to obtain the reversal of the judgment of the District Court.
    
      William Craighead, for the motion:
    1. The action was well brought in the name of the real parties in interest. Act of March 25,1851 (S. & C. 1139, sec. 1); Code, secs. 25, 27; lb., secs. 603, 605.
    The statute is remedial, and should be liberally construed. 23 N. Y. 476; Potter’s Dwarris on Stat. and Con. 73; Sedgwick on Stat. and Con. 41, 359, 360, 361; Adm’x of Tracy v. Adm’x of Cord, 2 Ohio St. 438.
    2. If the action was not well brought, the defendants, by failing to make the objection by special demurrer or answer, have waived it. Code, secs. 87, 88, 89; Hoskins v. Alcott ‡ Horton, 13 Ohio St. 217; Fulton Fire Ins. Co. v. Baldwin, 37 N. Y. 648; People v. Crooks, 53 N. Y. 648 ; Phomix Bank v. Donnell, 40 N. Y. 410; Nash’s Pr. 153 Bank of Tonisville v. Edwards, 11 How. 216; Myers v. Mechodo, 6 Abb. 198; Hobart v. Frost, 5 Duer, 672.
    
      
      J. A. Jordan, contra:
    Under the statute of March 25,1851 (S. & C. 1139), and. the amendment of section 2, March 7,1872 (69 Ohio L. 22), the action can not be brought by. or in the name of the widow and next of kin of the deceased, but must be brought by and in the name of an administrator. If not, who is to receipt for the money recovered on the judgment, if one is obtained ? Who is to make distribution of the money, if any is recovered ? It seems plain that this duty belongs to an administrator.
    The remedy in this case is purely statutory. The statute must be construed strictly. It is in derogation of the common law. Safford v. Drew, 3 Duer, 634; Worley v. The G. II. $ D. R. R. Go., 1 Handy, 490; Campbell v. Rogers, 2 lb. 117; Quinn v. Moore, 15 N. T. 435; Lyons v. The G. $ T. R. R. Co., 7 Ohio St. 339.
    '< This is not a case of want of capacity to sue nor defect of parties plaintiff in the sense supposed by plaintiffs’ counsel. Of course it is a want of cause of action. There is a want of capacity to sue in any case where the plaintiff has no cause of action. Want of capacity does not mean want of cause of action in plaintiff’s favor.
   By the Court.

The action was brought under the act of March 25, 1851, “requiring compensation for causing death by wrongful act, neglect, or default,” and the amendment of March 7,1872. 2 S. & C. 1139-; 59 Ohio L. 22.

1. Under the statute, the right to bring the action is vested in the personal representatives of the deceased; and the widow and next of kin can not maintain such action in their own names.

2. The amount recovered in such action is for the exclusive benefit of the widow and next of kin, and is to be distributed among them in the proportions provided by law in- relation to the distribution of personal estates of persons dying intestate.

The risk of ascertaining the persons entitled to the benefit of the recovery, and the duty of making the distribution, are not imposed on the defendant, but on the personal representatives of the deceased. Besides, if the widow and next of kin could recover in their own names a joint judgment against the defendant, the judgment might be satisfied by payment to either of the plaintiffs, and thus defeat the distribution required by the statute.

3. A good petition must contain a cause of action in-favor of the plaintiff, and when it does not show such cause of action, the objection is not waived by the failure of the defendant to demur, although the facts stated may constitute a cause of action in favor of a person not a party to-the suit.

We see no error in the judgment of the District Court-Leave to file a petition in error is therefore refused.  