(dissenting):
Disagreeing with the view of the majority, I would affirm in part.
A duly appointed administrator is the proper party to bring an action for wrongful death. See Section 15-5-70, 15-5-80 and 15-51-20 of the Code of Laws of South Carolina (1976); Glenn v. DuPont, 254 S. C. 128, 174 S. E. (2d) 155 (1970); In Re Estate of Mayo, 60 S. C. 401, 38 S. E. 634 (1901). Since no challenge to Nix’s appointment was made in the Probate Court, appellant may not now collaterally attack his appointment.1 Therefore, the trial court properly refused the motion for change of venue since Nix brought the suit pursuant to Code Section 15-5-150(1), and venue *485was properly laid in Hampton County where Mercury Motor Express was licensed to operate.2
The inconsistency wrought by granting subject matter jurisdiction to the action brought by Mrs. Hawkins’ estate and denying it to Mr. Hawkins is the result of application of the existing decisional and statutory law of this State. In Ridgeland Box Mfg. Co. v. Sinclair Refining Co., 216 S. C. 20, 56 S. E. (2d) 585 (1949), and Doremus v. Atlantic Coast Line Railroad Company, 242 S. C. 123, 130 S. E. (2d) 370 (1963), this Court approved the principle that a plaintiff may assign a fractional share of his claim to an otherwise disinterested resident of another state which assignment could have two distinct effects:
(1) Defeating diversity jurisdiction where the plaintiff assigns an interest to a resident of the same state as the defendant;
(2) Allowing suit to be brought in South Carolina under what is now Code Section 15-5-150(1) on an out-of-state cause of action by assignment of a fractional share of the claim to a South Carolinian.3
The federal courts have abolished result one. See Kramer v. Caribbean Mills, Inc., 394 U. S. 823, 89 S. Ct. 1487, 23 L. Ed (2d) 9 (1969). However, until Doremus, supra, is overruled, it is still the law of this State that a plaintiff may *486assign a fractional share of his claim and thus defeat the South Carolina door closing statute.
Utilizing the elementary proposition of law that an administrator stands on no higher ground than that occupied by the deceased when living, the majority asserts that Mrs. Hawkins could not have prosecuted an action for personal injuries against Mercury because of our door closing statute. However, Mrs. Hawkins could have prosecuted such an action via a Doremus assignment as heretofore described. Mention of Doremus is conspicuously absent from the majority opinion and the cases cited to support the assertion that Nix may not maintain suit in South Carolina are inapposite.
In the cases of Fowler v. Fowler, 242 S. C. 252, 130 S. E. (2d) 568 (1963) and Hall v. Murphy, 236 S. C. 257, 113 S. E. (2d) 790 (1960) relied on by the majority, suits by the administrator were allowed. The only other South Carolina case cited by the majority, Maxey v. Sauls, 242 S. C. 247, 130 S. E. (2d) 570 (1963),4 involved a suit by the administrator of a minor against a parent where the minor could not have sued the parent under any circumstances. Such a substantive bar to suit differs from the mere procedural bar as illustrated by the Doremus rationale of Code Section 15-5-150.
Likewise, the Virginia cases cited by the majority are inapplicable. In Lawrence v. Craven Tire Company, 210 Va. 138, 169 S. E. (2d) 440 (1969) the issue was whether a personal representative could maintain an action for the wrongful death of a fetus. The court disallowed the suit because it concluded the fetus was not a person, thus reaching the opposite result reached by this Court in the Hall case.
Reliance on the statement by the Virginia Supreme Court in Virginia Electric & Power Co. v. Decatur, 173 Va. 153, 3 S. E. (2d) 172 (1939) is also misplaced as that case con*487cerned a rule of evidence and addressed neither substantive nor procedural bars to suit by a personal representative.
In addition to failing to refer to Doremus, the majority opinion also fails to cite Chapman v. Southern Railway Company, 230 S. C. 210, 95 S. E. (2d) 170 (1956). In that suit by an administrator under the Federal Employers’ Liability Act against a foreign .railroad corporation doing business in South Carolina, this Court adhered to the citizenship of the administrator for purposes of Code Section 15-5-150 and did not even discuss the deceased’s citizenship.
The majority’s reliance on Section 15-5-60 is misplaced, as that section merely preserves a setoff or other defenses of a defendant in the event of the assignment of a thing or action. Thus, the section allows the defendant to plead affirmative defenses available to him against the assignor in actions brought by the assignee. The provision does not address itself to subject matter jurisdictional questions and hence with a legitimate assignment of an interest to a South Carolina resident, the requirements of the door closing statute are met. Thus, as in efforts to defeat diversity, the assignment satisfies jurisdictional requisites. Doremus v. A. C. L., supra.
While I do not object to the majority’s desire of keeping foreign suits which have utterly no connection with South Carolina out of South Carolina courts, this goal should not be attained by disregarding established case law and relying on dicta as “precedent.” Nienow v. Nienow, 268 S. C. 161, 232 S. E. (2d) 504 (1977). Had Mercury challenged the appointment of the administrator in either the probable or the circuit court,5 I believe we would be in a position to pass *488on the vitality of Doremus. Without such a challenge we should accept the validity of Nix’s appointment and hold him to be the proper party plaintiff in this wrongful death action. Since Nix is a South Carolina resident, our courts have jurisdiction of the matter under Code Section 15-5-150(1). Accordingly, I would affirm the order of the lower court denying appellant Edwards’ motion for a change of venue regarding the death action and reverse as to the personal injury suit.6
Rhodes, J., concurs.As stated in Norwood v. Atlantic Coast Line R. Co., 203 S. C. 456, 470, 27 S. E. (2d) 803, 809 (1943):
“No collateral attack may be made upon the granting of administration in the Probate Court, unless a lack of jurisdiction affirmatively appears on the face of the record, as distinguished'from the record being merely silent.”
We have recently affirmed that principle in Tucker v. Tucker, 264 S. C. 172, 177, 213 S. E. (2d) 588, 590 (1975), where, in holding that a circuit court has only appellate jurisdiction, once a matter is commenced in the probate court we said:
“While it is true that the circuit court has general jurisdiction in civil matters, once the forum for the administration of an estate has been chosen, the forum or court so assuming jurisdiction has control of the administration of the estate and parties interested in estate matters should apply to the judge of that court.”
Section 58-23-90 (1976) provides:
“An action may be brought against a motor carrier licensed under Article 5 of this chapter in any county through which the motor carrier operated.”
This section is applicable to a foreign motor carrier such as Mercury Motors, Inc., Windham v. Pace, 192 S. C. 271, 6 S. E. (2d) 270 (1939), and plaintiff has a choice between two otherwise proper venues where one defendant is a corporation and one a natural person. Deese v. Williams, 238 S. C. 292, 113 S. E. (2d) 823 (1960). Section 15-7-30 (1976).
The pertinent language of the Court was:
“As to the contention of the appellant that the plaintiff Davis, as the assignee of a 1/100 interest in the infant plaintiff’s cause of action, is not a proper party plaintiff in a suit brought by the assignee and assignor as joint plaintiffs, we think this contention was clearly decided adversely to the appellant in the case of Ridgeland Box Mfg. Co. v. Sinclair Refining Co., 216 S. C. 20, 56 S. E. (2d) 585.” Doremus, supra, 242 S. C. at 142-143, 130 S. E. (2d) 379.
Since partially abrogated by statute, see § 15-5-210.
While it is easy to suggest to a defendant, such as Mercury Motors, that it challenge in the circuit or probate court the appointment of an administrator as a device to create subject matter jurisdiction, there are several hurdles which such a challenge must surmount. Two distinct lines of authority confront a would-be challenger. The first flows from an expansive reading of § 14-23-260.
*488“The jurisdiction assumed by any probate court in any case, so far as it depends on the place of residence or the location of the estate, shall not be contested in any suit or proceeding whatever, except in an appeal from the probate court in the original case or when the want of jurisdiction appears on the record.”
The reason for this section is to avoid upsetting an administration once the estate is settled and proceeds distributed. South Carolina National Bank of Charleston v. May, 211 S. C. 290, 44 S. E. (2d) 836, 839 (1947). But while the statute, by its terms, limits collateral attacks only when they concern the place of residence (of the deceased) or the location of the estate (see, Simmons v. Atlantic Coast Line RR Co., 235 F. Supp. 325 (E. D. S. C. 1964)), there is broad language in at least one case to the effect that no collateral attack on an administrator is permitted on any grounds. Mitchell v. Dreher, 150 S. C. 125, 147 S. E. 646 (1929). The federal courts have viewed § 14-23-260 as binding only on the state, and not the federal courts. Simmons v. Atlantic Coast Line RR Co., supra, at 329. However, in state court, the defendant may not usually challenge the appointment of an administrator other than by a direct action in the probate court under § 14-23-260.
While the issue was not raised on appeal and therefore the question is not before this Court, broad application of the Door Closing Statute, Section 15-5-150, as is effected by the Court in Gibbs v. Young, 242 S. C. 217, 130 S. E. (2d) 484 (1963), and by the majority here, works to the detriment of South Carolina defendants. Here, by sweeping application of the Door Closing Statute the plaintiff will be required to bring suit in Virginia against both parties thereby frustrating the legitimate desire of a South Carolina citizen to face suit in the State of his residence. I do not believe that the General Assembly intended to create such a hardship. I would restrict the statute to cases where none of the defendants are from South Carolina or the cause of action has no relationship whatsoever with the forum.