62 Ala. 575 | Ala. | 1878
The case is involved by a singular confusion of unnecessary pleading, consisting of a plea in abatement, motions to strike pleadings from the file, demurrers and pleas in bar, accompanied by numerous objections to the admission of evidence. We decline to travel through the record, searching out the various rulings of the Court of Probate, and determining whether each of these are strictly correct, or whether any of them would furnish ground of reversal, if they had been made in another tribunal, in a different proceeding, governed by different rules, which have but little
The proceeding is an application by a creditor, under the statute, (Code of 1876; § 2367-8, which were §§ 2005-6 of the Revised Code,) to compel an executrix to give security, who is relieved by the will of the testator from that necessity, upon allegations showing his interest, and that it was endangered for the want of security. When the case was before this court, at a former term, (Smith v. Phillips, 54 Ala. 8,) we held a creditor was a party interested in the estate, entitled to apply under the statute for security from the executrix. We further said : “ No petition by a creditor, under this statute, ought to be entertained which does not set forth the debt on which his relation, as a creditor depends, with the precision and certainty essential in a declaration or complaint in an action at law against the personal representative.” But we were careful to say: “ No controversy as to the existence of the debt should be allowed beyond what may be necessary to satisfy the court of its probable validity. The judgment the court may render cannot fully determine its validity, and all the inquiry the court may make in reference to it, should be directed to the single question, is the applicant prima facie a creditor? If there are defenses against the debt, they must be inquired into and determined in a different proceeding, and must not embarrass this remedy,” The petition not then describing with reasonable certainty, the judgments or decrees claimed as debts against the estate, which were the foundation of the right of the petitioner as a creditor, was declared insufficient, but amendable in the Court of Probate. All pleading in any court, in a civil cause, is amendable under our statutes and practice, at any time before final judgment or decree. There was no discontinuance of the original petition, and there is no departure from it in the amendment.
It is not essential that the creditor instituting this proceeding, should be able to prosecute suits at law in his own name on the debts he claims. It may be that he has only an equitable or beneficial interest, and that a suit at law would necessarily be prosecuted in the name of the party having the legal interest; yet, if he have the right to use the name of such party, if driven to a suit at law, and his right to receive payment of, and discharge the debt, is clear in his own name, he may institutet his proceeding. The remedy is intended for the protection and benefit of the creditor having the real interest — he alone may suffer from the want of security. Judgments are incapable of assignment, so as to ena
On the facts of 'the case, it is manifest that the safety of the appellee as a creditor, required that the appellant should give security as executrix. Having examined the merits of the case, and having ascertained the appellant has shown that he is prima facie a creditor, and that his interests are endangered for want of security, we decline further notice of the numerous rulings of the Court of Probate, which could not, if erroneous, have changed the results, or injured the appellant.
Affirmed.
