Page:Federal Reporter, 1st Series, Volume 9.djvu/256

HOLMES V. OBEGON & CALIFOKNIA E. CO. 241 �reason that the case was submitted on the question of the conclusive- ness of the proceedings in Multnomah county, and the question of inhabitancy was not argued, and it is not necessary to determine the faet on this petition for rehearing. I merely refer to the point for the purpose of illustration. If I should hold the proceedings in ques- tion inconclusive, and then, as 1 probably should, also iind that Per- kins was not an inhabitant of Jackson county at the time required, and decide the case against libellant on that ground, then some other etranger, moved by the parties in interest, might file a petition in the county court of Douglas county, where the defendant stopped a month after he left Jackson county, procure the appointment of an- other administrator, and go through with a third suit to the supreme court, and upon failure therein, on the same grounds, repeat the proeess in Marion county. Sucb repetitions of the litigation in the forums chosen by the parties in interest would, in my judgment, be to the last degree vexations, and a law permitting it intolerable. The cases already cited from the supreme court, as I think, establish the principle that controls the decision of this case. But there are also numerous cases in the state courts to the same effect, and some of them determine the exact point. The precise point was presented and decided in favor of the conclusiveness of the judgment appoint- ing an administrator by the supreme court of California in Irwin v. Scriber, 18 Cal. 500, and that case has been frequently affirmed in that state. Rogers v. King, 22 Cal. 72; Warfield's Will, 22 Cal. 51. �in Lucas v. Todd, 28 Cal. 185, 186, the court says: "The i>etition of the plaintiff for letters of administration de bonis non states all the jurisdictional facts and gave the court jurisdiction of the case." �The rule with reference to other jurisdictional facts is definitely stated by Chief Justice Field, now a justice of the supreme court of the United States, in Haynes v. Meeks, 20 Cal. 313. After stating that a proceeding to sell land by an administrator is a distinct and independent proceeding in the nature of an action, of which the filing of the petition is the commencement and the order of sale the judg- ment, citing Sprigg's Case, 20 Cal. 121, he proceeds: �" We must, then, examine the petition to ascertain whether a case Is pre- sented by its averments, within the statuts, upon which the court ean act. And the petition must show upon its face two things: First, the insuffl- ciency of the personal property to pay the debts and charges against the estate; and, second, the necessity of the sale of the real property, or some por- tion thereof. Both must appear before the conrt can take jurisdiction of the proceeding. The truth of the averments — their sutliciency appearing — is v.9,no.5— 16 ��� �