Hine v. Hussey, 45 Ala. 496

45 Ala. 496 | Ala. | 1871

B. E. SAEEOLD, J.

The appellant, a creditor, applied to the probate court to set aside and annul the grant of letters of administration on the estate of Jonathan McDonald, deceased, to E. M. Hussey, and all the subsequent orders, decrees and proceedings rendered in the administration of the estate, as void, for the reasons set forth in the petition. The error complained of is the -judgment of the court sustaining a demurrer to the petition.

The various objections to the proceedings in the administration of the estate may be considered under three heads — 1st, The relationship of the judge to the parties ; 2d,'The decree for the sale of the lands of the intestate; 3d, The decree of insolvency.

The minute entry of the appointment of the administrator, Hussey, dated November 8th, 1866, recites that all the parties in interest requested the probate judge to act, notwithstanding his relationship to Hussey, and declared their wish in writing. The appellant contends that a written consent, signed by the widow and the heirs and distributees- of the deceased, dated December 1st, 1866, entered on the minute book, is the consent alluded to in the entry of November 8th, 1866, and is not a compliance with the statute; because two of the heirs, John and Lizzie McDonald, did not sign it, and the latter was a minor.

The statute (Rev. Code, § 635,) did not in this case require the consent of the parties to be put in writing, the court being one of record. As the written consent found in the transcript was not required to be made or entered on the minutes, we , can not regard it as á part of the record.

It is further contended for the appellant, that the minor heir could not consent. The general terms of the consent entered of record would not preclude the infant from reversing the action of the court on appeal. A novel feature of this case is,, that one who was certainly not a party in interest to the appointment of the administrator is seeking to set it aside against the resistance of the minor, for a reason which is generally the personal privilege of the minor.

The argument is weighty, and the authorities abundant, in support of the proposition that the relationship of the judge to the parties, or his interest in the cause, renders the action of the court coram non judice, but they are not conclusive. In Clanch v. Castleberry, 23 Ala. 85, construing a statute very similar to the present law, and perhaps less imperative in its terms, it was held that the action of the court was void, because the judge had been attorney for one of the parties. But in Heydenfeldt v. Towns, 27 Ala. 423, the rule is declared to be, that if the judge is deprived of authority to act by statutory inhibition, the proceedings are void; otherwise, they are voidable only, and valid until avoided.

Section 635 of the Revised Code says the judge must not act if he is interested, or related to the parties within the fourth degree of consanguinity or. affinity, unless by their consent entered of record. If the provision for consent .had not been introduced, there could have been no. question about the construction. But the consent giving authority, seems to imply a personal privilege. In Wilson v. Wilson, 36 Ala. 655, this court held that the probate judge would be incompetent if he was really a surety on the administrator’s bond. But this was on appeal. Section 635 has never been construed except in this last mentioned case, and the law is unsettled in this State.

We think that justice will be best subserved by ruling that the disabilities mentioned in the section (635) render the proceedings of the court voidable only, and not absolutely void. These disqualifications may be unknown, or so obscure as to require a judicial decision to determine their existence. It is a serious thing to annul the judgments of courts, and it ought not to be done where the consent of the parties alone is requisite to their validity, and its entry on the record is the only admissible evidence that it was given.

The order to sell the lands of the intestate recites the application of the administrator, alleging the necessity of a sale to pay debts, and proof was taken by deposition as in chancery cases. The jurisdiction of the court attached, and its action is conclusive until reversed, no matter what may be the errors and irregularities of the proceedings. Shepherd’s Dig., Decrees, p. 136, § 6 ; Rev. Code, § 2225 ; Satcher v. Satcher’s Adm’r, 41 Ala.

Proceedings in the probate court to declare an estate insolvent, are in rem. The jurisdiction attaches on the report of the administrator. — Clarke v. West, 5 Ala. 117. Previous to 1843, the mere report of au executor or administrator that the estate he represented was insolvent, was sufficient to authorize the orphan’s court to administer it as such. — Black’s Cred. v. Black's Adm'rs, 20 Ala. 401. The omission of assets in the report is no ground for even dismissing the report and petition, unless those discovered are sufficient to show that the estate is solvent. — Raines’ Adm’r v. Raines’ Cred., 30 Ala. 425. The decree of insolvency is somewhat interloeutoi’y. That an estate is certainly insolvent, can only appear when it is finally closed. The creditors are not otherwise affected than by being remitted to another forum.

[Note by Beporter. —The foregoing opinion was delivered at the June term, 1870, and on a subsequent day of the term appellants petitioned for a rehearing. The petition did not come into Beporter’s hands. The case was held under advisement until the present term, when the following response was made:]

It is urged that the decree of insolvency is void, because the third Monday in January, 1868, was appointed to determine the matter, while the notice given stated the third Monday in December, 1867, as the time, and the decree was rendered on the second Monday in January, 1868. The last date was the day of a regular term of the court. Bev. Code, § 795. That there was gross irregularity and negligence in this matter, is evident, but the decree was rendered on a proper report of insolvency, and is not void. The appellant was not without remedy. He had the right of appeal, and a resort to chancery to correct any error of law or fact in the settlement of the estate. — Bevised Code, § 2274.

The judgment is affirmed.

B. F. SAFFOLD, J.

The propositions asserted in the opinion read in this case are important and new in this State, and for that reason we have given the application for rehearing more than usual attention.

Is the proceeding in the probate court to declare an estate insolvent in rem or in personam ? The declaration of insolvency is interlocutory, and if res adjudicaba, is only so on the simple question of the solvency of the estate. Walker v. Mock, 39 Ala. 568. Prior to 1843, creditors were not allowed to dispute the fact of insolvency; and in 1847 this court decided that the decree of insolvency could not be collaterally impeached by a suit against the personal representative for the recovery of a debt due from the estate. — Edwards v. Gibbs, 11 Ala. 292. Creditors who have not filed their claims within nine months from the decree of insolvency, but have presented them within eighteen months from the grant of letters of administration, are entitled to be paid, if the estate should ultimately prove to be solvent; and they may show that it is, on the final settlement, by proof of assets not accounted for, with which the administrator is chargeable. — Middleton’s Adm’r v. Maull’s Adm’r, 16 Ala. 479. The probate of a will is a proceeding in rem, because it operates upon the thing itself, defining its status. Deslonde & James v. Darrington’s Heirs, 29 Ala. 95. Yet the widow and next of kin are entitled to personal notice, — Rev. Code, § 1951.

A judgment in rem is an adjudication pronounced upon the status of some particular subject matter, by a tribunal having competent authority for that purpose. A judgment in personam is, in form as well as in substance, between the parties claiming the right; and that it is so inter partes appears by the record itself. The judgment in rem is a solemn declaration upon the status of the thing, and, ipso facto, renders it what it declares it to be. — 2 Smith Lead. Cases, 692,693.

In the proceeding to declare an estate insolvent, no process is issued against any one, but all persons interested are constructively notified, and the judgment is not that this or that person shall pay a sum of money, or do any particular act, but that the estate is or is not insolvent.

A writ of error does not lie to reverse a decree of insolvency, until a final decree of settlement has been rendered, unless an issue has been made up and tried. — Black’s Cred. v. Black’s Adm’rs, 20 Ala. 401; Rev. Code, § 2183-86, 2244 (clause 6), 2187.

We think the foregoing authorities sufficient to show that a decree of insolvency partakes so much of the nature of a judgment in rem as to preserve its validity in a proceeding to set it aside as void for want of proper notice to creditors.

For the reasons given in the opinion read in this case, and those contained in the case of Hayes v. Collier, at the-present term, we still think that proceedings in a cause before a judge disqualified to sit by section 635 of the Be-vised Code áre voidable merely, and not void.

The rehearing is denied.