I am authorized to say that Justices RILEY, HURST, and ARNOLD concur in the views which I express with respect to the issue covered in syllabus No. 2 of the opinion of the court. I concur in the result reached, but upon a different theory.
The first proposition argued in this appeal relates to the failure of the plaintiff to prove that no administrator has been appointed, as a condition to the right of the widow to maintain the action. 12 O. S. 1941 §§ 1053-1054. This argument is based on several Oklahoma decisions holding that it must be alleged and proved that no administrator has been appointed before the surviving spouse, the widow here, or next of kin may maintain the action. Oklahoma Gas Electric Co. v. Spiva,183 Okla. 253, 80 P.2d 941; Oklahoma City v. Richardson,180 Okla. 314, 69 P.2d 334, and other cases.
The record discloses that plaintiff alleged in her petition that no administrator had been appointed, and that she and her two minor children were the parties entitled to maintain the action. *Page 135 There was an unverified general denial in the answer, and this is sufficient to raise the issue under 12 O. S. 1941 § 286, relating to certain pleadings that must be verified. Vaughn v. K. C. Ry. Co., 65 Kan. 685, 70 P. 602.
The record also discloses the following questions and answers in plaintiff's direct examination:
"Q. And you are the surviving widow? A. Yes, sir. Q. And no administrator was appointed for his estate? A. No, sir. By Mr. Swan: We object, the witness is not qualified — incompetent, irrelevant and immaterial, and move to strike. By the Court: Be sustained. Q. Do you bring this suit as the surviving spouse for the use and benefit of yourself and your minor children? A. Yes, sir. Q. As plaintiff? A. Yes, sir. Q. Have you ever been appointed administrator? A. No, sir."
No other questions were asked plaintiff on this issue, and no other effort was made to prove the issue.
After the jury had returned its verdict in favor of the plaintiff, the defendant filed a motion for a new trial, apparently designed to raise the issue of error in failing to prove that no administrator had been appointed. At the hearing on the motion for new trial, plaintiff offered proof of the allegation that no administrator had been appointed, which offered evidence was received, and the court overruled the motion for new trial.
Under the decisions cited and relied on by defendant it was error to overrule the motion for new trial in the absence of proof of the nonappointment of an administrator, unless the trial court considered the proof offered at the hearing on the motion for new trial.
We come now to the point whether evidence was admissible at the hearing on the motion for new trial to prove this issue. The trial court had no power to entertain the action unless it had jurisdiction of the parties. It is generally agreed that the capacity to sue is a question of jurisdiction. Illinois Cent. Ry. Co. v. Adams, 180 U.S. 28, 45 L.Ed. 410, 47 C. J. 18, secs. 15-28, and annotations, and 14 Am. Jur. 364, sec. 160, notes 11 and 15. We think this is especially true with respect to actions that are purely statutory, as is our action for death, and where the right vests in certain parties in a stated order.
We have said that the determination of the issue of whether a district court has jurisdiction is for the court, not the jury. Dolese Bros. v. Tollett, 162 Okla. 158, 19 P.2d 570.
Therefore, the issue of whether plaintiff had capacity to maintain this action, that is, whether an administrator had been appointed, was for the trial court and not for the jury, and could be considered and determined at any time by the trial court before it lost jurisdiction by the steps to appeal. The receiving of the evidence to support the allegation was proper.
We have considered the case of Walker v. O'Connell,59 Kan. 306, 52 P. 894, and do not think our decision on this point to conflict therewith. There was no allegation or proof on the issue in that case, but after demurrer to plaintiff's evidence the case was reopened and plaintiff permitted to show that no administrator had been appointed, and after the verdict of the jury the court permitted an amendment of the pleading to conform to the proof admitted when the case was reopened. It was held that this amounted to the making of a new issue as well as being erroneous because the proof was admitted over objection. In the case before us there was an allegation, and proof was admissible under the issue. We have not found any cases discussing whether proof may be received by the court after the verdict, as was done in this case, where the issue existed under the pleadings, but no proof was introduced or admitted in the course of the trial.
Since such an issue as this one is one of law for the court even though it may turn upon disputed facts, we see no reason why it cannot be determined by the trial court either before or after *Page 136 the verdict. We think the better practice is to dispose of this issue during the course of the trial.
The defendant does not attempt to show that prejudice resulted to it by reason of the admission of this evidence at the hearing on the motion for new trial, nor does it attempt to refute the idea that no administrator had been appointed. The record discloses that the trial court offered the defendant an opportunity to obtain and introduce evidence to refute the plaintiff's evidence on this issue, but it appears that defendant did not take advantage of this offer.
The defendant presented in its briefs herein all of the available assignments of error, and has had the same considered by this court. A reversal of the cause on this point would only call for a representation of the same evidence. All of the evidence necessary to support a judgment for either of the parties appears in this record, and as mentioned above, all opportunities for the presentation of additional evidence were given, and we can see no logical reason for reversing the cause solely for the trial of this issue, which would require the introduction of the identical evidence with respect to all other issues that appear now in this record.