
    ABATEMENT OF ACTION THROUGH INCOMPLETE APPOINTMENT OF ADM1NISTPATOR..
    [Superior Court of Cincinnati, Special Term.]
    Cornelius Archdeacon, Administrator, v. The Cincinnati Gas & Electric Company et al.
    Decided, March 22, 1905.
    
      Administrator—Failure to Give Bond—Action for Wrongful Death Rendered Nugatory—Authority of Administrator Does not Relate Back—And the Bar of the Statute Runs _Against the Beneficiaries —Jurisdiction—Remedy.
    
    1. The limitation of two years is an essential condition of the right of action growing out of a wrongful death, and begins to run at once against the beneficiaries, and once beginning, it runs on to completion withput interruption.
    2. ' Where the appointment of an administrator of a decedent, who came to his death through the negligent act of another, is not completed until the cause has abated, an action brought before the cause abated, and before'the appointment of the administrator was completed, can no,t he maintained.
   Hosea, J.

Heard on motion to dismiss.

The defendant, by leave of court, filed in this cause an amended answer, setting up that the plaintiff is without legal capacity to maintain this action, 'and upon motion to this effect the cause has been heard upon the amended answer as upon a plea in abatement, for the reason that it raises an objection, independently of the merits of the cause, which is fatal to the action if the facts be proved and the legal consequences claimed to result therefrom be sustained, and was duly heard upon evidence taken and arguments of counsel thereon.

The facts shown are that John Archdeacon came to his death on or before February 5, 1903, from causes claimed to be due to the negligence of the defendant companies; that on February 5, 1903, Cornelius Archdeacon applied to the probate court to be appointed administrator, making ..oath that there were no assets except the right of action in this behalf; and it also appears that on March 28, 1903, he filed a petition, as administrator, in the present suit, to which the defendant answered denying liability under the general issue.

It further appears- that Cornelius Archdeacon did nothing further to perfect his application to be appointed administrator until March 10, 1905—after the cause had been set for trial—when he filed his bond in the probate court, and thereupon, on said March 10, 1905, letters testamentary were issued.

It is claimed in support of the plea that as the plaintiff here was not administrator in fact when the suit was brought, the proceedings therein were nugatory; and that when the plaintiff became administrator two years later, by perfecting his application and obtaining letters of administration on March 10, 1905, the cause of action had abated' by the statutory limitation, and could not be revived, and that, consequently, the plaintiff is still without capacity to sue.

Against the plea it is claimed that, the statute in this behalf being remedial, all proceedings under it are to be construed liberally; that the power and the authority of an administrator upon -appointment relate back to the time of death, or, at least, to the date of application, and thus cure the defect of premature action. Also, that, by answering, the defendant waived all objections, and is bound thereby, because the defect was a matter of public record which implies notice.

It must be admitted that under ordinary circumstances of equitable procedure the questions here would seem to be resolvable against the plea, provided the matter is one admitting of application of purely equitable considerations.

The statute in question (Revised Statutes, 6134, 6135) was originally passed March 25, 1851, -and subsequently amended-. The portions involved in the present consideration- will be found in Section 6135, as. follows:

“Every such action shall be for the exclusive benefit of [indicating beneficiaries], and shall be brought in the name of the personal representatives- of the deceased person * * * and shall be commenced within two years after the death -of such deceased person.”

It is an established principle that conditions precedent required by law constitute part of the cause of action; and strictly, therefore, must be performed before the cause of action will accrue a'nd the remedial right arise. This is invariably true of conditions precedent contained in a statute creating a right or duty unknown to the common law. Pawlett v. Sandgate, 19 Vert., 621; Weeks v. O’Brien, 141 N. Y., 199; Bank v. Bank, 19 Fed., 295.

The statute in question is of this character; it gives a right and a remedy which did not exist at common law, “and should have effect given to it according to the words used in it to accomplish the purpose intended..” Steel, Admr., v. Kurtz, 28 O. S., 193.

“The action being a creature of the statute must be governed by the statute.” Wolf v. Ry. Co., 55 O. S., 527.

In Wolf, Admr., v. Railway (supra), it is also held that while an estate will, vest in the heir by operation of law, “it is otherwise as to the recovery of damages under our statute. While the liability is created by the statute, the damages do not become part of the estate, and are not east as .an estate by operation of law upon the beneficiaries, but must be sued for and recovered by action.”

In Helman v. Railway Vo., 58 O. S., 409, it is held that the statute created no new liability upon the death of the party, but in effect removed the common law bar of abatement by death, and the right of action accruing to the party for the injury, and devolved it upon the administrator in succession; and that, in consequence, the administrator and beneficiaries stand in relations of privity with the deceased in respect of such right.

It follows, therefore, that the limitation of two years is an essential condition of the right of action, and begins to run against the beneficiaries, for whose exclusive benefit the right of action is given; and, once beginning, it runs on to completion without interruption. Granger, Admr., v. Granger, 6 O., 42.

The appointment or non-appointment of an administrator, therefore, being a matter within the control of the parties in interest, can have no effect upon the -operation of the statutory limitation upon the cause of action.

The administrator is a mere trustee, in whose name the action must be brought. Fie has no right in the matter except in virtue of the right of the real parties in interest. If the right of the legal beneficiaries is lapsed or lost so that no remedy can be had upon it, it is manifest that the action can no longer be maintained. Woodward v. Railway, 23 Wis., 400 (cited and approved in 55 O. St., 531).

In a word, therefore, the beneficial interest in the subject-matter of the right of action passed in succession to the beneficiaries by virtue of the statute immediately upon the death; but the fight to institute the action remained in suspense as an incident of the cause of action until the appointment of the administrator. But in the present cause the administrator did not come into existence as such until the 10th day of March, 1905, more than two years after the death of the injured party, at which time the right of the beneficiaries had lapsed, and, consequently, the cause of action was never legally completed. An administrator has no power to act before the grant of letters; his power is derived exclusively from his appointment. Woerner on Administration, etc., 409, 383.

It is fundamental that a plaintiff must have a right of action before bringing suit; and to constitute a right of action there must be a party entitled to institute process. Ex parte Collins, 49 Ala., 59; Fruitt v. Anderson, 12 Ill. App., 421; Stratton v. R. R. Co., 74 Me., 422; R. R. Co. v. R. R. Co., 38 Penn. St., 361; Maia v. Hospital, 97 Va., 507; Patterson v. Patterson, 59 N. Y., 574; Angell on Limitations, Chapter 7.

By the statute the right to institute action is vested in the administrator—by virtue of his capacity as such—and not in the individual. It is, therefore, a condition precedent to the right of action that an administrator be in existence, upon whom this right may devolve. This is very fully established in the case of Weidner v. Rankin, 26 O. S., 522, brought by the widow and children.

In that ease a defendant moved to vacate a verdict and judgment against him and for judgment non obstante veredicto, on the ground that plaintiffs were not authorized to sue. In the Supreme Court it was claimed by plaintiffs in error that the action was in the name of the real parties in interest; that the statute being remedial should be liberally construed; and that defendant had waived objections by failing to demur or answer specially. On the other side, it was urged that the remedy was purely statutory; that being in derogation of the common law the-statute must be strictly construed; and that the defect was not merely want of capacity to sue, but want of a cause of action. The court held with the defendant, first, that the right of action vested in the personal representative and not in the beneficiaries; also that the petition must contain a cause of action in favor of plaintiff, and that the objection was not waived by defendant by failure to demur, although the facts stated might constitute a cause of action in favor of one not a party to the suit.

The application of these principles to the case at bar-is manifest and conclusive. There was no cause of action in the plaintiff at the commencement of the suit. lie had no right to bring suit, nor power to institute process. Had the defect been cured before the right in the beneficiaries lapsed, it is possible that by liberal construction a nunc pro tunc effect could have been given to his subsequent completion of his appointment; and this principle is the principle disclosed in many of the authorities cited by the plaintiff here in support of the argument; but in the ease at bar there was no cause of action existing when the correction was made, because the beneficiaries were legally defunct. In other words, the cause of action had lapsed, and, consequently, could not be revived (Lyons, Admr., v. Railroad, 7 O. S., 339, 340). Consequently, the attempt to correct was of no legal effect.

The point is further made evident' in Railway Co. v. Hine, 25 O. S., 629, wherein it is held .that—

“The limitation of two years is a condition qualifying the right of action, and not a mere limitation upon the remedy, ’ ’

D. T. Hackett and W. A. Binclchof, for plaintiff. .

Outcalt & Foraker, for defendant.

Also in Wolf, Admr., v. R. R. Co., 55 O. S., 527, in which Railway v. Hine (supra), is approved and the matter re-stated briefly thus:

“It is not a defense in a proper sense, but a necessary condition to the right of action.”

That is to say, it is not a mere matter of defense that can be waived by a defendant, but is .jurisdictional, because it inheres as a condition precedent in the right of action.

Upon the facts, therefore, and upon the law as clearly set forth by our Supreme, Court, I am constrained to hold the plea good and must, therefore, sustain the same.

Judgment for defendant, dismissing the petition.  