Bean v. Chapman

62 Ala. 58 | Ala. | 1878

STONE, J.

As we read this record, the ruling of the Circuit Court on the demurrers, is shown in the judgment entry. Not in the final judgment, it is true ; but the ruling was entered on the minutes, in a separate, independent entry. It is found on the 19th page of the transcript, and is in all respects formal, except that it contains only the judgment on the demurrer. Courts frequently pronounce judgment on demurrers before the cause is taken up for final trial. , Sometimes this is done at a different term of the court. There is no irregularity in this. Our ruling is, that judgments on demurrer, to receive consideration of this court, must appear of record; must be entered on the minutes. The present record comes up to the rule, and its effect is not impaired by the unnecessary exception reserved to the ruling of the court thereon.

Under the facts of this case, the flagrancy of the recent war between the sections did not stop tlio running of interest. The plaintiff and defendants in this suit, at no time sustained the relation of alien enemies to each other. During the entire prevalence of that fierce con diet, they inhabited co-terminous counties in this State. The plaintiff could at any time have received payment from the defendant*, and the defendants could at any time have paid the plaintiff, without violating any rule of law. The whole theory on which interest and the statute of limitations stand still during hostilities, rests on the stern non-intercourse which public law requires of nations or peoples at Avar with each other. It is a public quarrel, in which every individual on the one side, whether combatant or non-combatant, is conclusively classed as the enemy of every individual on the other side. These shall have no commercial intercourse with each other. Bean and his intestate, Garner, were never alien enemies to Chapman or Cabaniss. At any time suit could have been prosecuted on this cause of action between these parties, and the money due, with interest, might have been coerced out of these defendants, even before the close of the war. The case of Paul v. Christie, 4 Har. & McH. 161, is not distinguishable from this. It was there held that the plaintiff was entitled to full interest, notwithstanding the Avar. Wo think that decision rests on impregnable grounds. We do not, in this, gainsay the doctrine, that “ as soon as a war is commenced, all trading, negotiation, communication or intercourse between the citizens of this country and the enemy, without the permission of government, is unlawful.” — Griswold v. Waddington, 16 Johns. 438 ; Brown v. Hiatts, 15 Wall. 177; Semmes v. Hartford Ins. Co., 13 Wall. 160; Conn v. Penn, Pet. Cir. Ct. Rep. 496; Denniston v. Imbrie, 3 Wash. Cir. Ct. 396; 1 Am. Lead Ca. 528. See, also, Lash v. Lambert, 15 Minn. 416. What we decide is that this case does not fall within the rule.

It in contended for appellees that, being only sureties, their liability is accessorial, and that they can not be held for a greater sum than their principal, Lakin, is liable to pay. The foregoing is certainly the rule in a proper case. Whenever the inquiry is one of original liability, the surety can net be held to a greater extent than the principal is bound for. The principal’s obligation defines the boundary upward, beyond which the surety’s obligation can not be carried. Bo, the creditor can do no act by which he reduces the principal’s liability, without, at the same time, reducing the surety's liability, at least, to the same extent. But the rule is very different where the law reduces or absolves the principal";; liability, without the fault or procurement of the creditor. In such case .the principal’s defense is personal, and does not affect or impair the surety’s liability, unless he also have a personal defense. Discharge of the principal in bankruptcy, statute of limitations, or, if he be dead, failure to present or file the claim against his estate within the time required by law, are of this class. — Minter v. Br. Bank, 23 Ala. 762 ; Hooks v. Br. Bank, 8 Ala. 580 ; Cawthorne v. Weisinger, 6 Ala. 714; Woodward v. Cligge, 8 Ala. 317. In such cases the surety can pay the debt at any time after it matures, and then proceed against the principal for money paid for his use, and at his request. Whether if the present defendants pay this debt, they ca3i slot recover of Lakin, their principal, the whole sum they have to pay, including interest, is a question we need not here discuss. The Circuit Court erred in overruling plaintiff’s demurrer to the 7th, 8th and 9th pleas of defendants.

Our statutes have made provision for the transaction of probate business, when the Judge of Probate is incompetent to sit by reason of interest, relationship, &c., under section 540 of the Code of 1876 Section 2648 declares that “when a Probate Judge is incompetent under the provisions of section 540 of this Code, to discharge any duty in reference to an executorship, an administration, or guardianship, the Register in Chancery of the district in which the county of such Judge is situated must discharge that duty, as if he were Judge of Probate. — § 2648. Such Register must discharge such duty in the Probate Court without the removal of the original papers or records from such Probate Court; and all orders, decrees and judgments therein made by such Register, may be appealed from, revised and enforced, as if they were the orders, decrees or judgment of such court.”

In Wilson v. Wilson, 36 Ala. 655, rules are laid down which» we think, settle the most material questions arising on this branch of this case. The Judge of Probate of Morgan county, the county in which Bean’s administration of Garner’s estate is alleged to have been had, certified that he was brother-in-law both to Bean and to Garner, his co-administrator; and he made an order, transferring the account and settlement to the Register in Chancery of that county. This, if properly shown to the Circuit Court, divested the jurisdiction of the Judge of Probate, and clothed the Eegister in Chancery of that county with all probate jurisdiction of that administration, so long as the disability of the Probate Judge continued. We judicially know who are and have been Probate Judges at any given time, and we know that the same person was Probate Judge when the order of transfer was made June 6th, 1870, and when the Eegister issued the letter of administration to Bean, August 2d, 1871. Hence, the order of transfer of the Judge of Probate, if properly shown, proves that the Eegister in Chancery of Morgan county was the proper officer to appoint Bean, the brother-in-law of the Judge of Probate, to the administration of Garner’s estate. No new certificate of disqualification was necessary.

But the Register should have discharged that duty “in the Probate Court,” and the record of the appointment should have been made in that court. It did not pertain to the Chancery Court. Under the statute, the case is not transferred to the Chancery Court, nor to the Register of that court, as Register. The Register becomes Judge of Probate pro hoc vice. His action becomes the act and record of the Probate Court, and the record is required to remain in the Probate Court. When necessary to have a transcript of the record, it is certified from the Probate Court, not the Chancery Court. The Register’s certificate of such order, made as Register in Chancery, gives it no authority whatever; for, as to this service, thus pronounced, he is a private person. The Judge of Probate was the proper officer to certify the transcript in this case ; and, on this ground, without considering any other, the Circuit Court did not err in rejecting the transcript. There is perhaps another ground which required its rejection. It assumed to certify what did not appear of record,,namely, that H. A. Sharpe was the successor of C. O. NeSmith. The order of transfer was not so certified as to make it legal evidence.

If the order of transfer had been legally shown, then, as we have stated above, the jurisdiction of the Register to discharge this particular “ duty in the Probate Court,” would be made out. The matter of performing the duty “ in the Probate Court, without the removal of the original papers or records from such Probate Court,” would be a question of regularity at most, which would not avoid the proceedings, presented collaterally, as the question comes before us in this case. It thus became a question in the court below, of proving the order of transfer by legal evidence. We have shown above that the offer made in this case did not come up to the rule, and the Circuit Court did not err in its rejection.

It is contended that the appointment of Bean was void, because the record shows the prior appointment of Bean and Garner as administrators in chief, and does not show their authority had ceased. The record of the administration in chief is not pretended to be set out in this transcript. All that is attempted to be shown is, the appointment of Bean and Garner to the administration in chief, the order of the Probate Court, reciting that they had filed an account and vouchers for final settlement, that the Judge of Probate was “ incapacitated to act in the matter of said settlement on account of being a brother-in-law to said administrators,” and transferring said account and settlement to the Begister in Chancery; and the letter of administration to Bean, issued about a year afterwards, by the Begister in Chancery. The filing of the account current for final settlement indicates that Bean and Garner, as administrators, proposed to make final settlement, and to be relieved of the trust. Bean was appointed to the same trust more than a year afterwards. Presented collaterally as this question is, and in the absence of all information other than that referred to above, we hold that, if the order of transfer were legally shown, it would be our duty to presume the authority of the administrators in chief had terminated legally, before the Begister committed the administration to Bean. — Spright v. Knight, 11 Ala. 461; Ragland v. King, 37 Ala. 80; Coyburn v. McQueen, 46 Ala. 551 ; Code of. 1876, § 2376.

Reversed and remanded.

Brickell, C. J., not sitting.