This is an appeal from a judgment for damages awarded in favor of E.J. Rogers, as administrator of the estate of Harry Barr, deceased, against Andrew Mellon, Director General of Railroads and Agent of the President. The original complaint filed August 27, 1920, alleged that plaintiff was appointed administrator of the estate of the deceased on July 19, 1920, by the probate court of Power county, and that suit was by him instituted and maintained as such administrator.
Subsequently, plaintiff was permitted over defendant's objection to strike from the complaint paragraph 1 reciting such appointment, and amend by substituting therefor the following allegations:
"(1) That on the 19th day of July, 1920, the plaintiff herein was duly appointed administrator of the estate of Harry Barr, deceased, and thereupon, and on the 19th day *Page 470 of July, 1920, duly qualified by filing bond in the amount required by the probate court of Power county, Idaho, and on said last mentioned date took oath of office, and in all other respects duly qualified as such administrator, and upon the said last mentioned date duly entered upon the discharge of his duties as such administrator, and ever since said time has been, and now is, the duly appointed, qualified and acting administrator of the estate of Harry Barr, deceased; that on or about the 10th day of January, 1925, the probate court of Power county, by reason of the judge of said court feeling himself disqualified, by its order, duly made and entered, transferred the proceedings therein to the probate court of Bannock county, Idaho, and on said last mentioned date transmitted all of the records and files in said cause to the probate court of Bannock county, Idaho, and that the said proceedings are now pending in the said probate court of Bannock county, Idaho; that on or about the 31st day of December, 1924, a petition was duly filed in the probate court of Bannock county, Idaho, praying for the appointment of your petitioner as administrator of the estate of Harry Barr, deceased, for the reason that certain questions had been raised concerning the jurisdiction acquired by the probate court of Power county, Idaho, under the proceedings originally instituted therein as hereinbefore set forth, and such proceedings were had therein that on the 10th day of January, 1925, your petitioner was duly appointed administrator of the estate of Harry Barr, deceased, by the probate court of Bannock county, Idaho, and on the 12th day of January, 1925, he, the said plaintiff herein, duly qualified as such administrator under the appointment of the said probate court of Bannock county, Idaho, by filing his bond in the form required by law and in the sum ordered by the probate court, which said bond was duly approved upon said date, and by taking the usual administrator's oath, all of which is on file in the office of the probate court of Bannock county, Idaho, and that he, the said E.J. Rogers, is the duly appointed, qualified and *Page 471 acting administrator of the estate of Harry Barr, deceased, holding said office by virtue of the proceedings hereinbefore set forth and under the orders of the said probate court of Bannock county, Idaho; that this action is brought by the said plaintiff as administrator of the estate of the said Harry Barr, deceased, for and on behalf of said estate."
Defendant moved to strike from the amended complaint all the allegations relative to the appointment of plaintiff by the probate court of Power county on the grounds that it affirmatively appeared therein (1) that at the solicitation and request of the plaintiff and on evidence introduced and supplied by him, the probate court of Bannock county had found and decided that Barr was a resident of Bannock county at the time of his death; that the probate court of Power county had no jurisdiction, and that its order was null and void and that the findings of the probate court of Bannock county wereres adjudicata; (2) that the plaintiff had abandoned the proceedings taken before the probate court of Power county and had by his action, admissions and pleadings, confessed the invalidity of those proceedings; (3) that it was admitted that the pleadings relative to the appointment made by the Power county probate court were redundant and dead matter, and admitted that the allegations were false and untrue both in law and in fact. This motion was by the court denied, and defendant filed a special petition alleging that the order of the probate court of Power county was void, among other things, for the reason that the court lacked jurisdiction to make the appointment; that the order of the probate court of Power county had been abandoned, its invalidity confessed, and it had been declared null by the probate court of Bannock county at the instance of plaintiff, and by a valid judgment held to be void, and the matter was therefore res adjudicata; that the order transferring the matter to the probate court of Bannock county was void; that the allegations in the complaint were inconsistent, and it was impossible that they both were true; that the cause had been *Page 472 set for trial, and that the defendant would suffer irreparable injury and could not safely proceed to trial unless the question as to which, if either, of the plaintiffs was entitled to maintain the suit, was adjudicated, and praying that the court hear evidence touching upon the allegations of the petition and decide in advance of the trial as to which, if either, of the alleged plaintiffs was entitled to maintain the action.
This petition having been denied, defendant moved that plaintiff be required to elect whether he would rely upon the appointment issued out of the probate court of Power county or that issued out of the probate court of Bannock county. The motion was denied.
Defendant then filed general and special demurrers, the latter averring (1) that it appeared affirmatively from the complaint that the court had never acquired jurisdiction of the defendant; (2) that it appeared affirmatively that the plaintiff named in the original complaint did not possess the capacity to sue; (3) that the complaint showed a defect and misjoinder of parties plaintiff in that it had two plaintiffs with no community of interests and with interests diametrically opposed; (4) that the complaint stated two separate and distinct causes of action, one in favor of the administrator appointed by the probate court of Power county and one in favor of the administrator appointed by the probate court of Bannock county; (5) that the complaint was ambiguous for the reason that it could not be determined whether the plaintiff claimed to prosecute the action by virtue of authority of letters issued in Power county or whether he prosecuted it by virtue of authority of letters issued in Bannock county; (6) that it was uncertain for the same reason; (7) that it was unintelligible for the same reason; (8) that it appeared on the face of the complaint that the action was barred by the provisions of sec. 206 of the Federal "Transportation Act of February 28, 1920," as amended by Act of June 5, 1920, 41 Stat. L. 461, Fed. Stats. Ann. 1920 Supp., 2d ed., p. 77. *Page 473
Both demurrers were overruled. Defendant then moved to dismiss the action, urging that (1) it appeared on the face of the complaint that the action was brought against the government in its sovereign capacity, without its consent; (2) that it appeared on the face of the complaint that the action was barred by the provisions of sec. 206 of the said Transportation Act; (3) that it appeared on the face of the complaint that no action had ever been regularly instituted, and that the present plaintiff had never been properly made a party to the suit.
The motion was denied; and upon answer joining issue and affirmatively pleading the matters theretofore incorporated in his preliminary pleas and motions, the defendant went to trial. Motions for nonsuit and directed verdict were denied, and verdict was rendered adverse to defendant.
Among the many errors assigned, particular stress is laid upon the court's refusal to sustain defendant's preliminary pleas and motions attacking the amended complaint. The right to institute and maintain this action depended wholly upon the appearance of a plaintiff clothed with legal capacity to sue. 'Such a plaintiff was declared in the original complaint, and the validity of his appointment was not questioned. However, by amendment, he voluntarily declared that subsequent to the commencement of the suit, he had for jurisdictional considerations sought and received an appointment as administrator from the probate court of Bannock county, thus judicially admitting that the deceased died a resident of that county. Such an admission necessarily establishes the nullity of the Power county court's appointment and the legal incapacity of its appointee to institute the original action. In fact, plaintiff's invocation of the Bannock county court's jurisdiction, and his adoption of its findings essential to the acquirement of such jurisdiction estop him from claiming any authority under the Power county court's proceedings. The Power county court's appointment cannot be validated by any act of the probate court of Bannock county. Conversely, no act of *Page 474 the probate court of Power county can aid or assist the Bannock county court in acquiring jurisdiction to make an appointment. The jurisdiction of either derives from facts absolutely contradistinct. If facts existed vesting the Power county court with jurisdiction to appoint, the facts requisite to a conference of jurisdiction upon the Bannock county court could never exist. (C. S., sec. 7438.) And plaintiff has seen fit to depart an apparent jurisdiction, and by his acts and declarations establish an actual jurisdiction elsewhere. In other words, he has retracted his former position and fixed the residence of the deceased at the time of his death in Bannock county, the only county whose probate court could qualify plaintiff to maintain this action.
The suit at bar was therefore brought without authority or sanction in law, and is a mere nullity. It cannot be given life by injecting therein, through amendment or otherwise, a subsequently qualified plaintiff whose legal entity at the commencement of the action was nonexistent. (Lusk's Admrs. v.Kimball, 87 Fed. 545.)
The judgment is reversed and remanded, with directions to the trial court to dismiss the action. Costs to appellants.
Budge and Taylor, JJ., concur.