Hudson v. Modawell

64 Ala. 481 | Ala. | 1879

BEICKELL, C. J.

On a final settlement of the administration of Modawell, as administrator of Hudson, had in the Court of Probate of Perry county, on the 23d day of May, 1878, decrees were rendered against him, in favor of the several distributees, and executions thereon were regularly issued against him, and returned No property found. On the 5th March, 1879, after the return of the executions against Modawell, the appellants applied to the judge of probate, for execution against him and 8. S. King, E. A. Steele, and R. L. Steele, as sureties on his bond. Thereupon, those sureties appeared voluntarily, without any notice to them, and answered the application, interposing several grounds of defense ; all of which proceed upon the admission, that they were sureties on a bond of Modawell’s as administrator, but claiming a discharge from liability, by reason of matters occurring after the execution of the bond. To this answer the appellants demurred, on various grounds ; and their demurrer having been overruled, a hearing was had upon evidence, and the probate judge refused to issue executions against the sureties.

The proceedings were without authority of law, and the decree of the Court of Probate, or the order of the probate judge, which ever it may be esteemed, was coram non judice. The statute provides that, “whenever an execution for money issues against any executor or administrator, from the Probate Court, and the execution is returned to any regular term of such court, ‘ no property,’ by the sheriff of the county, an execution may issue against the executor or administrator and his sureties.”- — Code of 1876, §2619. A probate judge is charged with ministerial, as well as judicial duties. The issue of an execution is purely a ministerial act, which may be performed by a clerk or deputy, to whom he delegates authority. — Kyle v. Evans, 3 Ala. 481. When applied to for its issue, if the application proceeds from a proper party, the only inquiry he can make is, whether the record of the court shows a decree authorizing its issue. Beyond them he cannot look, and inquire whether there is not matter which will discharge the parties, or any of them, from liability. The bonds of executors, or of administrators, are approved by the judge, of file, recorded, and preserved in the Court of Probate ; and when execution under the statute is sought against the sureties, the bond must be regarded as part of the record,, as essentially as the decree against the principal.

There are many bonds taken in the course of judicial proceedings, which, if forfeited, have the force and effect of judgments by statute, and on which clerks of the Circuit Court, or registers in chancery, or judges of probate, must issue execution. If, on the application for the issue of execution, these officers, all of whom act ministerially, could enter on an inquiry as to the validity of such bonds, or as to the liability of parties appearing to be bound by them, much confusion in proceedings would follow, and mere ministerial officers would assume and exercise judicial power.. In all such cases, the issue of execution is matter of right; and if the parties against whom it issues are not liable on the bond, an application for a supersedeas is the appropriate mode of relieving themselves; or, if there are equitable circumstances, a bill in equity. — Elliott v. Mayfield, 4 Ala. 417; Dunlap v. Clements, 18 Ala. 778. Or, when the court, from which the execution issues, is in session, a motion to quash it will be entertained, upon any ground which would authorize a supersedeas. — Crenshaw v. Hardy, 3 Ala. 653; Watkins v. Bassett, Ib. 707; Ewing v. Peck, 17 Ala. 329; Brown v. Br. Bank Montgomery, 20 Ala. 420; Lansford v. Richardson, 5 Ala. 618.

We do not deem it proper, in the present state of the proceedings, to enter on the inquiry as to the liability of the appellees, or any of them, for the decree rendered against Modawell.

The decree and order of the judge of probate must be reversed and annulled.