40 So. 108 | Ala. | 1905
The Shapard Bank, a body corporate, being insolvent, made an assignment for the benefit of its creditors, and the trust so created is being administered in the chancery court. The appellant, C. P. D. Taylor, filed his claim for |9,000 with the register, whereupon the appellees, who were creditors, filed their objections in writing to said claim. The claim was subsequently amended, and the objections were refiled to the claim as amended. Upon the hearing the register entered an order allowing the claim as a nonpreferred claim against the trust estate, but referring it until the preferred claims of depositors, who had not stipulated for interest, were paid. To this order the appellant, the said Taylor, expected, and took an appeal to the chancellor, who made a decree confirming the report and sustaining the order of the register. From this decree the present appeal is prosecuted. The three assignments of error question the correctness of the register’s order, the affirmance thereof by the chancellor, and the chancellor’s decree.
The objections to the claim of the said Taylor were filed in writing under the provisions of section 4164 of the Code of 1896, and were based upon the constitutional provision which gives to “holders of bank-notes and depositors who have not stipulated for interest” a preference of payment over “all other creditors,” in case of the'bank’s insolvency. — Const. § 250. The objections were heard before the register without any question being raised, by demurrer or otherwise, as to their sufficiency and the form of making them; and the insistence here for the first time of the insufficiency of the objections on the grounds stated, if it had any merit, comes too late. Moreover, the statute gives the right to object to “any creditor,” and it is immaterial whether the objecting creditor be a preferred or nonpreferred creditor, as in either case he is interested in having the preferred class as small as possible, and the statute makes no difference or distinction.
Our Constitution contains many instances of nonselfexecuting provisions. In these cases there is always some indication that something is left for the Legislature to do, or there is something in the nature of the provision that renders such legislation necessary. This is not true of the provision now under consideration. The fact that other sections- relating to banks and banking may not be self-executing furnishes no good and sufficient reason for. holding this independent section not to be so. The provisions exempting homesteads was held to be self-exeeuting in this court in the case of Miller v. Marx, 55 Ala. 322. This court, in testing the question by án inquiry, said: “We may probably best understand the subject of this limitation by inquiring whether the framers of the Constitution intended thereby to declare personal rights of the citizen, or to define a rule for the govermfient of the Legislature. If the former, then the clause is legislative in its character, and needs no leg
The register and chancellor both so ruled, and we are clearly of opinion that they were correct in such ruling. We fiud no error in the record, and the decree appealed from will be affirmed.