Ex parte Lyon, 60 Ala. 650

Ex parte Lyon

60 Ala. 650 | Ala. | 1877

STONE, J.

It is declared in the Code of 1876 (§ 2625), that “In all proceedings in the Probate and Chancery Courts, . . . where the estate of a deceased person must be represented, and there is no executor nor administrator of such estate, or the executor or administrator thereof is interested adversely thereto, it shall be the duty of the judge of the court in which such proceeding is had to appoint an administrator ad litem of such estate, for the particular proceeding, and without requiring a bond of him.” Section 2626 : “ Whenever, in such proceedings, the estate represented by such administrator ad litem shall be entitled to a decree for the recovery of money, or for the possession of real or personal property, such decree shall be rendered in favor of such administrator ad litem, for the use of such estate ; and when such decree is for the recovery of money, and such estate has no executor nor administrator, execution shall issue on such decree in favor of such administrator ad litem, for the use of such estate, and the amount thereof shall be paid, by the officer collecting it, to the judge of the Probate Court, or the register of the Chancery Court, or the officer acting as such, out of which such execution issued.”

The administrator ad litem, in the present case, was appointed after Mr. Lyon had been appointed administrator in chief of the estate of Edwin A. Glover. Hence, this is not a case where “ there is no executor nor administrator of such estate.” If it can be maintained at all, then, it must rest on the ground, that this record presents a case where “ the ad*654ministrator thereof is interested adversely thereto ;” that is, where the personal interest of the appointed administrator in chief is adverse, or antagonistic, to the interest of the estate involved in the litigation. Such appointment of an administrator ad litem is made, and can only be made, in the interest of the estate — as the representative of the estate— against an adversary personal interest in the rightful administrator. Hence, it is declared that, when there is a recovery, the “ decree shall be rendered in favor of such administrator ad litem, for the use of such estate;” and whatever recovery may be had, in such case, will be assets of the estate. ít would be an anomaly in judicial proceedings, for an administrator ad litem, to recover of the administrator in chief assets of the estate of which each of them was the personal representative, suing and being sued in their representative capacity, when any recovery that may be had will be for the use of the estate. Poster, as administrator ad litem of Glover, suing Lyon as administrator in chief of Glover, furnishes no antagonistic interests which can be the subject of a suit. Glover’s estate can not sue Glover’s estate. To a suit by an administrator ad litem, the rightful administrator of the same estate may be a defendant in his individual capacity. He cannot be in his representative capacity.

In the present record there is a final money decree, in favor of Poster, as administrator ad litem of Edwin A. Glover’s estate, against Lyon, as administrator in chief of the same estate, to be paid out of the assets of said Glover’s estate in said Lyon’s hands; and execution is ordered to issue for its collection. The present application is for a prohibition, to arrest the proceedings, and to prevent the enforcement of said decree.

In Ex parte Greene and Graham, 29 Ala. 52, we said, the power to issue the writ of prohibition should never be exercised, except in cases “ where the relator has no other adequate remedy.”—See, also, Ex parte Smith, 23 Ala. 94; Ex parte Walker, 25 Ala. 81. In High on Extraordinary Legal Eemedies, § 770, is the following language : “ Like all other extraordinary remedies, prohibition is to be resorted to only in cases where the usual and ordinary forms of remedy are insufficient to afford redress. And it is a principle of universal application, and one which lies at the very foundation of the law of prohibition, that the jurisdiction is strictly confined to cases where no other remedy exists; and it is always a sufficient reason for withholding the writ, that the party aggrieved has another and complete remedy at law.”

We do not think Mr. Lyon, as administrator of Glover, *655was rightly made a party defendant tp this suit. He is not, in the pleadings, made a party in that capacity. It requires more formal proceedings than a recital in the chancellor’s decree, of the only words found in this record bearing on that question, to bring a stranger into the suit, and uphold a decree against him. The recital is : “ This cause being submitted at the-term,- — , by T. J. Foster, special administrator of Edwin Glover, and F. S. Lyon, administrator in chief of said Glover, for decree in vacation.” Still, there is a decree against Mr. Lyon, as the administrator of Edwin A. Glover’s estate, condemning the assets in his hands to the payment of an ascertained sum of money, rendered in favor of Mr. Foster, and ordering an execution to be issued for its enforcement. This has all the attributes of a final decree, from which, under ordinary circumstances, an appeal would lie to this court. — Code of 1876, §§ 3916, 3927. Will it lie in this case, and what would be the result, if the case should be brought here by appeal? We have shown, above, that Mr. Lyon was not properly made a party as administrator of Glover, and, consequently, there was error in decreeing against the assets of Glover’s estate in his hands. But the decree is in favor of Mr. Foster, as administrator of the same estate. An appeal by Mr. Lyon, and assignments of error, would necessarily be in his representative capacity, against Mr. Foster, in his representative capacity; an appeal by Glover’s estate, to obtain the reversal of a decree in favor of Glover’s estate. This, as we said supra, presents no antagonistic interests — no adversary parties — and can not be the subject-matter of a suit. On such appeal, whether we affirmed or reversed the decree, we would necessarily decide in favor of the estate of Glover, against the estate of Glover. The usual and ordinary forms of legal remedies can not reach the errors shown in this record. This, then, presents a clear case for a writ of prohibition, and it must issue accordingly.

In the present case, the chancellor and Mr. Foster have had reasonable notice of the time and place of making this application; the whole record is before us, and the merits of the application have been fully argued. We, therefore, consider it unnecessary to award a rule nisi, before awarding an absolute writ.—See Moore v. Randolph, 52 Ala. 530.

It is therefore ordered, that a writ of prohibition issue to the Hon. A. W. Dillard, chancellor of the Western Division of the State of Alabama, prohibiting him, and all the officers of said court, from collecting, or proceeding to collect, the amount of said decree, or any part thereof; and commanding and enjoining him to revoke and annul, or to cause to be *656revoked and annulled, the said decree against E. S. Lyon, as administrator of said estate of Edwin A. Glover, and against the assets of Glover’s estate in Lyon’s hands. Let the costs of this proceeding be adjudged against Thomas J. Foster.

The final decree in this cause, in the court below, dismissed the bill against all the defendants, except Lyon, as administrator of E. A. Glover. We have seen above that Lyon, as such administrator, has never been rightfully made a party defendant to this suit; and by our order above, we have declared that he has never been made a party in that capacity, and that he cannot be so made. This leaves the present case with only one party of record, T. J. Foster. It is impossible, in this suit, to make or execute a valid decree, that the costs and expenses of this chancery suit shall be paid out of the assets of Glover’s estate. If there is any remedy for fastening such charge on the estate, it must be in another proceeding, and probably before another tribunal.