Carhart, Bros. & Co. v. Clark's Adm'r

31 Ala. 396 | Ala. | 1858

STONE, J.

— The act of 1843 was construed, in Hollinger v. Holley, 8 Ala. 454. It was there held, that a claim against an insolvent estate must be filed within six months after the declaration of insolvency; and that a failure to comply with this requirement of the statute could be taken advantage of at any time before, or on the settlement. The clause which required “every such claim to be verified by the affidavit of the claimant,” received a different construction. In reference to this verification by the oath of the claimant, the rule declared by that and subsequent decisions of this court was, that a claim which was filed in time should not be rejected for an omission of the affidavit, “where no exception is taken to the claim in the mode pointed out by the act.” It was further ruled under that statute, that even after objection on this account, the affidavit might be made at any time before or on the day of settlement. — See Clay’s Dig., 194, §§ 10, 11; Bartol v. Calvert, 21 Ala. 42; Gaffney v. Williamson, ib. 112; Hogan v. Calvert, ib. 194; Brown v. Easly, 10 Ala. 566; Easly v. Shortridge, 10 Ala. 520 ; Cook v. Davis, 12 Ala. 551; Campbell v. Campbell, 11 Ala. 730 ; Brazier v. Lile, 13 Ala. 524.

The provisions of the act of 1843 are substantially different from the sections of the Code which bear on this question. While the former is, in its terms, imperative only as to the matter of filing the claim within six months, the latter couples the verification with the act of filing, and constitutes both acts necessary pre-requisites to the validity of the claim against the insolvent estate. Its language requires that “every person, having any claim against the estate so declared insolvent, must file the same in the office of the judge of probate within nine months after such declaration, or after the same accrues, verified by the oath of the claimant, or some other person who knows the correctness of the claim, and that the same is due; or the same is forever barred.” — § 1847.

We hold, then, that unless the claim, loith Us verification, is filed within the nine months, the “objection” provided for by section 1854 of the Code is not the only mode of controverting the right to have the claim allowed. As was ruled under the act of 1843, on the matter of filing claims, this objection may be made at any time before, or on the settlement. — Pickle v. Ezzell, 27 Ala. 623.

"We differ with the primary court, in the construction of section 1849 of the Code. That section provides, in cases like the present, that “the oath may be made before a notary public, justice of the peace, or any judge of a court of record, or a commissioner of this State.” The question arises, in what manner is the court to be informed that the person who certifies the affidavit is in fact the officer he assumes to be ? Evidently the legislature did not suppose that our courts should judicially have knowledge of the official character of the certifiers. Ve could not know who are judges of courts of record, holding commissions under other States. We think that, in all cases, except when the oath is made before a justice of the peace, the Code makes the certificate prima-facie evidence of the existence of every requisite to a valid oath; viz., that the oath was taken, and before a lawful officer. We are led to this conclusion by the familiar maxim, inelusio unius est ezclusio alterius. The section we are considering provides, that when the oath is “made .before a justice of the peace, £in another State,] it must be certified that such officer was a justice of the peace, and that his attestation is genuine, by some judge of a court of record, or a commissioner of this State.” The same section declares, that when the oath is “made before either of the other officers specified in this section, no other proof of the taking of such oath is necessary, than the certificate of such officer.” “A commissioner of this State” is one of the officers specified in this section, and we think his certificate makes out a prima-facie case of verification under the statute.

We do not hold that the certificate of one styling himself commissioner, notary public, or judge of a court of record, would be conclusive evidence of the fact. The presumption might be overturned by proof.

On the question of fact pronounced upon by the probate court, tbe testimony was not very full. Tbe entire proof consists in tbe record fact, tbat tbe affidavit was taken in tbe city of New York, on tbe 24tb February, 1857; tbat tbe nine months expired about five days afterwards; and tbe evidence of tbe attorney, tbat according to bis best recollection and belief, tbe affidavit was filed in the court within tbe nine months. We know of no rule of law, which would enable tbe probate court or this court to take judicial knowledge of tbe distance between tbe two points, New York city, and Livingston in this State. Nor can we know tbat tbe clnim could not be carried from one point to tbe other within the time specified. On tbe few, simple facts in tbe record, unaided by others, we think a jury would have found tbat tbe affidavit was filed in time; and we think tbe probate judge should have drawn tbe same conclusion from tbe evidence.

Tbe judgment of tbe probate court is reversed, and tbe cause remanded.

Walker, L, dissents on tbe first point ruled in this case,