Croft v. Ferrell

21 Ala. 351 | Ala. | 1852

GOLDTHWAITE, J.

— From an examination of the bill of exceptions in this case it appears, that no exception was taken to the ruling of the court below, except upon the single point as to the question of jurisdiction, arising upon the decree rendered on the 13th of August, 1849.

The act of 1843 provides, that "whenever any person to whom letters testamentary, of administration, or guardianship shall have been granted by any Orphans’ Court of this State, shall have removed beyond the jurisdiction of the court granting said letters, without having settled his accounts as such executor, administrator or guardian, the judge of said court may, upon the application' of any person interested, cause notice to be given, by advertisement in some newspaper published in this State, requiring said executor, administrator or guardian to file his accounts and vouchers for settlement, at a regular term of said court to be holden not less than three months from the date of such notice; and if the said executor, administrator or guardian shall fail to appear and file his accounts and vouchers for settlement, it shall be the duty of the judge of said court, to state an account against said executor, administrator or guardian, charging him with such amounts as shall appear, upon the best information, to have come to his hands, as such executor, administrator or guardian, and proceed to settle and decree upon the same, as is now required by law.” Clay’s Dig. 230, § 47.

The only object of the notice required by the statute, is, to bring the executor, administrator or guardian, who had removed beyond the jurisdiction of the court which granted the letters without settling his accounts, before the court; and although it is necessary that the record should show the facts which invested the court with the authority to state the account, we regard it as wholly immaterial whether the existence of those facts was proved before or after the publication. From the time of the application, until the action of the court in stating the account, the proceedings are to be regarded as in fieri, and the authority on which the final action is based may be proved at any time before such action is had. In the present case, the record shows that, at the time when the order for publication was made, the guardian had removed beyond the jurisdiction of the court which granted the letters of guardianship; and in another part of the record, it appears, that he had not filed his accounts and vouchers for a settlement. The principal act of the court to which the statute Ave have cited refers, is, the stating of the account, Avith the vieAv to its future allowance, and all the requisites upon which the jurisdiction of the court depends, or its authority to do this act rests, appear from the record to have been established by the evidence before its performance; and this being the case, the jurisdiction of the court in stating the account Avas complete.

2. The decree, after stating the account, directs publication to be made, requiring the plaintiff in error to appear at a court to be held on the second Monday 'in October; at Avhich da3r, there being no judge qualified, it Avas continued until the second Monday in November next. Conceding that this entry Avas void, as not being the act of the court, and that a discontinuance was the result of the failure to continue the proceedings over to another term; yet we think that the appearance of the plaintiff in error, on the second Monday in November, 1849, to the motion against him for the allow-anee of tbe account on that day, and bis failure to object to tbe motion on that ground, operated as a waiver of tbe discontinuance, and placed bim rightly in court. Wheeler v. Bullard, 6 Por. 352.

Tbe refusal of tbe court to allow tbe evidence offered, cannot be considered, as it does not appear from tbe bill of exceptions that it was excepted to.

Tbe judgment is affirmed.

Note. — Tbe plaintiff in error having petitioned for a rehearing in this case, tbe following opinion was afterwards delivered :

PER CURIAM.-

— In this case, an application is made for a re-bearing, on tbe ground that this court erred in tbe conclusion to which it arrived, that tbe decision of tbe court below rejecting the evidence offered by tbe plaintiff in error, for tbe purpose of proving that tbe recitals of facts in tbe decree rendered on tbe 13th of August, 1849, were untrue, was not excepted to, so as to authorize its consideration by this court.

Tbe rule is, that, to authorize an appellate court to revise tbe decision of an inferior tribunal in relation to tbe admission or rejection of evidence, tbe bill of exceptions must show that such decision was excepted to during tbe trial of tbe case. Walton v. The United States, 9 Wheat. 651. Tbe bill of exceptions in tbe present case shows, that tbe objection made by tbe plaintiff in error, which has been already considered by tbe court, was overruled and an exception taken thereto. This is recited in tbe body of tbe bill, and of course is to be considered as a statement of tbe facts as they occurred on tbe trial. It then continues thus; “ Tbe defendant then moved tbe court to open said decree or judgment upon tbe account as stated, because tbe facts set out in said decree were not true; and, in support of bis motion, offered to prove, that no such publication as is stated in the decree was in fact made,” and several other facts, all conducing to establish that tbe recitals in tbe decree were untrue. Tbe bill of exceptions then states, that “tbe court would not permit tbe defendant to make any of tbe above proof, and ruled, that tbe decree or judgment so made was conclusive of every fact contained in tbe same, and that tbe record could not be contradicted by sucb proof. Defendant then offered to prove, that there was no publication in any paper, except the publication made in the “Chambers Herald” in the fall of 1847. The court refused to receive the testimony as offered by the defendant. The defendant prays the court to sign and seal this, his bill of exceptions to the ruling of the court, which the court now signed and sealed,” &e.

It will be remarked, that there was one point decided against the plaintiff in error which is shown to have been excepted to, as is to be inferred from the language of the bill of exceptions, at the time the decision was made; and the words, “to the ruling of the court,” in the prayer of the bill, we think, refer to the ruling of the court which is shown in the body of the bill to have been excepted to. The prayer of the defendant below, “that the court sign and seal this, his bill of exceptions,” &c., must be referred to the act which he asks to be done, which is the signing and sealing of the bill; and although it might show that the party excepted to the ruling of the court at the time it was presented, it does not, of itself, and in the absence of any recital to that effect in the body of the bill, show that the exception was taken during the trial. The rule is, that writings of this character are to be construed most strongly against the party taking them, (Patton v. Hayter, 15 Ala. 18); and as the act of 1844, by clear implication, authorizes bills of exceptions to be taken at any time during the term, (Acts 1844-5, page 5,) and in the great majority of cases they are not presented until the trial is over, we cannot, in the present case, presume that the contrary practice was pursued, and that it was presented during the trial.

But'we think that the words which are principally relied on by the counsel for the plaintiff in error, “ to the ruling of the court,” are superfluous where they are found in the prayer of the bill. All bills of exception are to the ruling of the court, and the insertion of these words in the place where they are found adds nothing to the force and effect of what precedes them, and does not in any wise change the construction of the words previously used.

The application must be denied.