Gaffney v. Williamson

12 Ala. 628 | Ala. | 1847

ORMOND, J.

In our judgment, this claim must be considered as having been filed in proper time. It appears it was left with the clerk before the estate was reported insolvent, for the purpose of presentation to the administrator, and was by him presented; and upon the estate being declared insolvent, was by the clerk placed among the papers showing the insolvency of the estate. The act of 1843, (Clay’s Dig. 194, ■§> 10,) requires the clerk to indorse on the claim the day on which it was filed, and to keep a docket, or list of the elaims so filed ; but the omission of this duty on the part of the clerk, cannot prejudice any creditor, who deposits his claim with the clerk, when an estate is declared insolvent. It can make no difference, that this claim was handed to the clerk before the estate was declared insolvent. That he considered it placed in his hands for that purpose, is evident, from the fact that he placed it ,on file among the papers.showing the insolvency of the estate. This unequivocal act, he cannot be allowed to controvert, by saying he did not consider it as filed, or by his omission to indorse the fact upon it, or to transfer it to his docket if he kept one.

From this it results, that the orphans’ court erred in its judgment, which must be reversed, and the cause remanded.