McBroom's Adm'rs v. McBroom's Creditors

19 Ala. 173 | Ala. | 1851

CHILTON, J.

1. It is assigned for error, that the chancellor assumes that the cause was transferred from the Orphans’ Court in consequence of the interest which the judge of that court had in the subject matter. The order transferring the cause does not show upon what ground the transfer was made. It does appear however, from another part of the record, that the judge of the Orphans’ Court was incompetent to act, by reason of his relationship to Thomas McBroom, one of the administrators. It does not appear that any objection of this kind was made in the court below, but on the contrary, the parties appeared in the Chancery Court, and proceeded with the cause. Under these circumstances, as the record discloses good ground for the transfer, we think the jurisdiction of the Chancery Court should not be questioned in this court, and that the mistake in setting forth the reason for the transfer in the decree is immaterial.

2. The report of the register states the account against Richard B. Purdom and Stephen McBroom, adm’rs. &c., and the decree following the report is also against Stephen, whereas, the whole of the proceedings show that Thomas and not Stephen McBroom was the administrator, and this constitutes the 2d and 3rd assignments of error. It is most manifest that the error here complained of was a clerical misprision, and as such, falls within the letter as well as the spirit of the statute, allowing amendments to be made. — Clay’s Dig. 821, § 50, ib. 322, § 54. The section last referred to requires this court to amend at the' cost of the plaintiffs in error.

3. It is however objected, that this estate has been settled as an insolvent estate, and that the record furnishes no evidence, (such as the chancellor could regard) of the report of such insolvency, and a decree of the Orphans’ Court predicated upon the report. It appears that on the 27th February, 1845, the following entry was made in the Orphans’ Court. “ The estate of William McBroom having been heretofore reported and declared insolvent, it is ordered that all" persons having claims against said estate, to file them in this office on or before the first day of September next.” Then follows an order of publication to be made, that creditors file their claims in the office of the clerk of the County Court, properly authenticated, on or before the first day of September, 1845, or the same would be forever barred. There is nothing farther apparent in the record of the proceedings to show that this estate was reported or declared insolvent. Is this sufficient to give the court jurisdiction of the estate, so as to'decree in favor of creditors, as in case of insolvency uhdef the statute1? — The cases of Clarke v. West, 5 Ala. 117, and Lambeth & Wife v. Garber, et al. 6 Ala. 870, fully answer this query in the negative. In the case first cited, it Was held, that the report of insolvency not appearing in the record, all the proceedings in the County Court, treating the estate as insolvent, were irregular, and subject to reversal, and it was further said, that the recitals of the report in the various •orders could not control the defect; that the report being the only evidence of what it contained, could not be ascertained by the consideration given to it by the court. The subsequent case in 6 Ala. 870 sustains the former decision. In the case before us, it does not appear when or by whom this estate was reported insolvent. No report appears, nor any schedule showing the condition of the estate, with respect to its debts and assets, See. Neither is there any decree, declaring the same insolvent, but a bare recital, that it had “heretofore been reported and declared insolvent.” Such recital we think wholly insufficient to confer the jurisdiction here exercised. The case before us is not anala-gous to the case-of McLaughlin, adm’r. v. The Creditors of Nelms, 9 Ala. 925, where it was held that an administrator could not object to the regularity of an order declaring the estate insolvent, made upon his own report. The declaration of insolvency appeared in that case, and was made upon the report of the administrator. Here it does not appear, and the estate in fact appears to be perfectly solvent. We feel very sure that the decree cannot be supported. It must therefore be reversed, and the cause is remandéd.