77 Ala. 510 | Ala. | 1884
Under the statutes prior to the act of 1843, the effect of the insolvency of an estate, judicially ascertained,
It is insisted, that the effect of the present statutes is, to require the Circuit Court, when the suit is there pending, to retain jurisdiction, try the issues, and adjudicate the justness and validity of the claim; and that they debar the plaintiff from dismissing his suit, and transferring the claim to the jurisdiction of the Probate Court for adjudication; in other words, that they exclude the jurisdiction of the Probate Court, of claims the'subject-matter of pending suits in the Circuit Court. The vice of the proposition lies in a misconception of the purpose and scope of the act of 1843. With a view to secure speedy and inexpensive settlements of insolvent estates, exclusive jurisdiction of all claims was, by previous statutes, vested in the Probate Court. Under the operation of the statutes, suits that had been properly commenced in the Circuit Court, when the estate was supposed to be solvent, were abated, and the plaintiffs, after having incurred considerable costs and expense, were transmitted to another forum, and another suit, for the adjudication of their claims. The act of 1843 was designed to remedy this mischief; and the remedy proposed was, to restore to the Circuit Court its original right to retain jurisdiction, try the issues, and render judgment, notwithstanding the decree of insolvency. The effect is, not to take from the Probate Court all jurisdiction of claims, on which suits are pending, but the exclusive jurisdiction.
The statute requires, in terms: “ Every person, having any claim against the estate 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.” As the result of judicial decision, construing the statutes in pari materia, an exception has been allowed in favor of claims, the subject of
In McDougald v. Rutherford, 30 Ala. 253, it was held, that where a claim was filed in the Probate Court against an insolvent estate, within the requisite time, and, on written objections being filed within the prescribed period, an issue was made up and tried, the parties appearing, a judgment disallowing the claim is conclusive on the plaintiff,' though a suit upon .the claim was pending in-the Circuit Court, at the time of the decree of insolvency. It is said : “ The Circuit Court having first obtained jurisdiction of the cause, the plaintiff, by interposing in a proper manner the pendency of suit in that court, might have defeated the proceedings to test his claim in the Probate Court. But the Probate Court unquestionably had jurisdiction of the subject-matter. The plaintiff had the right to file his claim in that court, and prosecute it to judgment; if he could.”
The general policy of the law is, that all claims, entitled or claiming to share in the distribution of the estate, shall, at the expiration of nine months after the declaration of insolvency, appear on the docket of the Probate Court, subject to the inspection of the administrator and creditors. There are statu
The statute, in express terms, requires written objections to any claim filed against the estate to be filed within twelve months after the declaration of insolvency. To extend the time, in case of a pending suit in the Circuit Court, to twelve months after the dismissal of the suit, would be judicial legislation. The statute does not limit the necessity of filing objections within the twelve months to claims required to be filed. Its terms are, “ may object to the allowance of any claim filed against the estate.” The claim of the appellant was filed in the Probate Court, within nine months after the decree of insol
We do not construe the statement in the record, that the objections were “filed by agreement by way of pleas,” as a waiver of the time within which the objections should have been filed. The objections had been previously filed, and a motion to strike them out, because not filed in time, was made and overruled. To obviate the necessity of preparing regular pleas to the complaint filed by appellant, the agreement was to consider'the objections filed as pleas. Such seems to have been the understanding of the parties, and of the probate judge, as the point was not made in the Probate Court.
Keversed and remanded.