MOORE v. KRAFT, 179 F. 685

BAKER, Circuit Judge (after stating the facts as above). A state cannot give its courts, through their officers, such as administrators and receivers, power to' reach out for persons and things beyond the lines of the state. Vaughan v. Northrup, 15 Pet. 1, 10 L. Ed. 639. So Moore as Arkansas administrator could not have sued Kraft in Illinois upon the cause of action which had accrued to Mrs. Kraft.

But when Moore, in the right of his intestate, sued Kraft in Arkansas and obtained- the judgment in question, the original cause of action became merged in the judgment, and the judgment became the legal evidence of a new debt, for the nonpayment of which a new cause of action would arise. Now this new cause of action never belonged to Mrs. Kraft, and so it would be logically impossible for Moore to sue upon it in her right.

If a person buys or leases property from an administrator or receiver, the consideration is promised to be paid to a living person, who sues by virtue of what he has done, not by virtue of what the deceased or insolvent had done; and whatever he may do or be obligated to do with the consideration when he collects it, is wholly irrelevant to,the issue,, The question is the right to collect, not who may be the ultimate beneficiaries, just as in replevin the question is right of possession, not ownership.

Therefore the law is that, after an administrator or'receiver recovers judgment in the right of the deceased or insolvent, he may in his own right sue upon the new debt wherever he finds the .debtor, and the addition of his title in the declaration is mere description which is rejected as surplusage. Biddle, Adm’r, v. Wilkins, 1 Pet. 686, 7 L. Ed. 315; Wilkinson, Receiver, v. Culver ,(C. C.) 25 Fed. 639; Newberry, Adm’x, v. Robinson (C. C.) 36 Fed. 841; Talmage v. Chapel, 16 Mass. 71; Black on Judgments, § 963; 18 Cyc. 877, 1239, 1240. So what becomes of the plea?

In the Arkansas court Kraft had his day to show why this new cause of action in favor of Mpore personally should not be created. If there was any infirmity in Mrs. Kraft’s claim, then was the time to assert it. If there was any want of power in the Arkansas probate court, if any challenge of Moore’s right to maintain that action in his representative capacity could be made, then was the time to present not only the defenses that were set up but every possible defense.

If there was any validity in Kraft’s contentions that his indebtedness to his wife became at her death a part of her estate in Illinois, that upon his appointment as administrator in Illinois (when does not appear, but that is immaterial) the chose in action eo instanti was converted into a cash asset for which he was bound to account to the Illinois probate court, and that the jurisdiction of the Illinois probate court over his debt to his wife was exclusive, such matters might or might not have been adjudged to be good reasons why Moore in the Arkansas court should not recover a judgment in the right of Mrs.

Kraft against Kraft, the debtor, who was a different identity from Kraft, the administrator; but they afford no defense to the judgment as an evidence of a new debt from Kraft as an individual. Manifestly it is impossible to excuse a judgment debtor merely because he may have suffered some one else to recover a judgment on the same original debt. The judgment is reversed, with the direction to sustain the demurrer to the plea, and to proceed further not inconsistently with this opinion.