McNeil v. Macon's Admr.

20 Ala. 772 | Ala. | 1852

Lead Opinion

LIGON, J.

The proceedings in reference to the allowance or disallowance of claims against insolvent estates must be regulated by the provisions of the act of 1843 in relation to that subject.

By tbe ninth section of that act, it is provided that, “Every person, having any claim against such insolvent estate, shall file the same in the clerk’s office of the said court, within six months after such estate is declared insolvent; and every such claim shall be verified by the affidavit of the claimant, and the clerk shall give a receipt therefor to the claimant, his agent or attorney, and shall endorse on such claim the day on which the same shall he filed; and shall keep a docket or list of such claims, which shall, at all times, be subject to the inspection of the administrators and creditors of the estate; and if no opposition shall be made to the allowance of such claim, in the manner hereinafter provided, within nine months after the time when said estate was declared insolvent, such claim shall be admitted and allowed, as a good and valid claim against the said estate, without further proof.” Clay’s Dig. 194, § 10.

By this section, the manner of presenting and filing claims against insolvent estates is clearly pointed out, and in cases in which no opposition to their allowance is made, in the form required by the next section of the act, the affidavit of the claimant alone is sufficient to establish it. Under this section no discretion is given to the Judge of the Probate Court. When a claim is filed according to its provisions, and its validity is not contested by the administrator, or a creditor in the name of the administrator, in the manner required by the tenth section of that act, he has no power to call for other proof; all that remains for him to do is, to see that the affidavit is regular, and if this be so, to allow the claim, and charge the estate with its payment pro rata.

The record in this case does not show, either affirmatively or by fair implication, that the administratrix, or any creditor in her name, ever called in question the justness or validity of the claim of the plaintiff in error, by filing objections in writing; nor does it any where appear, that an issue was made up to test it, or that any thing equivalent occurred in the Probate Court. From all that appears, the judge, mero motu, instituted an inquiry into the justice of the claim, heard some proof, and rejected other, and thefi pronounced against the validity of the claim, and refused to allow it. Such a proceeding is wholly without authority of law, and manifestly erroneous.

As tbe proceeding to contest tbe claim was not regulated by tbe tenth section of tbe act of 1843, (Clay’s Dig. 194, §11,) and consequently tbe writ of error sued out in tbis case cannot be predicated upon tbe fourteenth section of that act, my own opinion is, that it is prematurely sued out, no final order or decree having been made within tbe meaning of tbe act of 1821. Clay’s Dig. 297, § 4. But my brethren think differently, bolding that tbe rejection of a claim against an insolvent estate by the Judge of Probate Court, is final as to that claim, and that a writ of error will lie to this court under tbe statute last referred to. To this effect is tbe case of Shortridge v. Easley, Admr., 10 Ala. 520. In that case, however, tbe writ of error could have been sustained under tbe act of 1843, for it was fully within tbe letter of that act, without resorting to tbe act of 1821, or in any manner invoking its aid. That portion of tbe decision I regard as a dictum, involving an erroneous exposition of the act referred to. As Abe writ of error is held to be regular by a majority of tbe court, I fully concur with them in tbe judgment of reversal.

It may be proper to remark, that if tbe judgment in tbe court below was rendered more than nine months after tbe estate was reported insolvent, no contest on tbis claim can now take place in that court; for, after that time, tbe adminis-tratrix and creditors are not allowed by law to question its justice, or to impeach its validity. Tbe record sent up is very meagre, and probably defective; should tbis be tbe case, and tbe record below show that objections were there made, within tbe time and in tbe manner prescribed by tbe statute, (Clay’s Digest 194, § 11,) that court will proceed to try tbe issue made on such objections, as that section of tbe act directs ; or, if nine months bad not elapsed from tbe report of insolvency to tbe time tbe judgment was rendered in the Probate Court, objections will be allowed until tbe expiration of that period, without taking into tbe computation tbe time tbe case has been pending in tbis court.

Let tbe judgment be reversed, and tbe cause remanded.

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Dissenting Opinion

CHILTON, J.'

I feel it to be my duty to dissent from tbe practice which I conceived is sanctioned by tbe opinion of my brethren in tbis case.

The record shows there was a contest respecting the validity of McNeil’s demand, and he adduced before the- judge much proof in relation to it, some of which was rejected, and the remainder was adjudged insufficient to support the claim, which was consequently rejected. The exclusion of the proof by the judge, and his decision upon that which was admitted, in rejecting the claim, are assigned for error. True, no formal issue appears in the record; but this is not assigned for error, and the rule of practice heretofore adopted is, to consider no matters not assigned. Minor’s Rep. 11-23-35; Stebbins v. Fitch, 1 Stew. Rep. 180; Long v. Rodgers, 19 Ala. Rep. 328. It is said the rule goes farther, and justifies the court in declining to consider matters which, though assigned for error, are not insisted on in argument by the counsel. Cunningham v. Carpenter & Watson, 10 Ala. Rep. 109. The general assignment that the court erred in rejecting the claim, does not in my opinion raise the question of error in allowing the parties to proceed in the absence of a formal issue. It was competent for the parties to have waived this in the court below; and I presume they did, or the objection would have been taken in that court, and assigned for error in this.

Again: the statute requires the issue to be tried as at common law, that is, by a jury; but the parties can waive a trial by jury, and submit the matter of contest to the adjudication of the judge. The bill of exceptions taken by McNeil, the plaintiff in error, and which must therefore be construed most strongly against him,"shows, that he submitted his proof to the judge, but fails to show that he was forced to' do this, or denied a jury, or that he raised any objection to this mode of trial. Then is it npt the reasonable and legitimate intendment, that he consented that the court, instead of the jury, should decide upon the facts ? I hold that it is, and that the verdict of the judge on the facts is as conclusive as if rendered by a jury, and is no more the subject of revision by this court. Ethridge v. Malempre, 18 Ala. R. 565. If he erred in excluding the proof, however, that error may be reviewed, although he excluded it from his own consideration.

Under the decision of my brethren, the presumption is indulged, against the regularity of the judgment, and in favor of tbe party excepting, tbafc be submitted proof in support of bis claim, tbe justice and validity of wbicb were not impugned, and that tbe court actually rejected tbe claim, of tbe correctness of wbicb there was some proof, although no objection was taken to its allowance.

Thus, McNeil is enabled to speculate upon tbe chances; for bad tbe court allowed bis claim, it were well, and tbe judgment founded on the judge’s finding irreversible; but having failed in tbe contest to obtain a judgment of allowance, be is permitted to reverse tbe decree rejecting tbe claim, because tbe record discloses no formal contestation. Tbe result, therefore, is that tbe case is sent back that a formal issue may be joined; and it may be, to return upon us with tbe same questions wbicb have already been twice argued, but are left undecided.