Thornton v. Moore, 61 Ala. 347

Thornton v. Moore

61 Ala. 347 | Ala. | 1878

BRICKELL, C. J.

1. The motion to dismiss the appeal •can not be entertained. It comes too late, after a subffiission of the cause on the merits, without notice of it to the appellant, and without affording him the opportunity of curing the defects by amendment, as he could have done-under the statute. — Code of 1876, § 3931.

2. The statute requires that every claim against an insolvent estate, which is to share in the distribution of the assets, must within nine months after the declaration of insolvency, or after the claim accrues, be filed in the office of the judge of probate, verified by the oath of the claimant, or of some other person who kno-ws its correctness, and that the same is due, or it is forever barred. If an executor, administrator, guardian, or trustee, is the claimant, the verification may be according to his belief. An insufficient verification unay be corrected by amendment or proof, at any time before *351final decree. — Code of 1876, § 2568. Objections to the allowances of the claim, are required to be filed within twelve months after the declaration of insolvency, or they •can not be entertained. — Code of 1876, §§ 257A-51.

The words of the statute would indicate that the claim, that which is asserted to be an existing liability on the estate, should be filed. The effect of the declaration of insolvency, is to draw within the jurisdiction of the court of probate, all claims against the estate, and all controversies as to their validity; and it is the manifest purpose of the statute, that on the files of the court of probate, at the expiration of nine months from the decree of insolvency, open to the inspection of the personal representative, and of all creditors, every claim entitled to share, or which it is claimed shall share in the distribution of the assets, shall be found. It is the duty of the personal representative, and the right of each creditor, to contest the allowance of any and every claim which shall be preferred, if believed invalid, and a full and fair opportunity for an examination and contest of the claims, the statute intends to afford. Thames v. Herbert, ante, p. 340. Such however has not been the construction the statute has received. Its purposes are regarded as accomplished, and its terms substantially complied with, when the evidence or statement of the claim as filed, taken in connection with the affidavit verifying it, disclose an existing liability against the estate. A copy of a promissory note, or of a bill of exchange, may be filed, the production of the original being dispensed with, unless objections are interposed to its allowance, and an issue as to its valadity and justness formed. — Rowdon v. Young, 12 Ala. 234; Rutherford v. Br. Bank Mobile, 14 Ala. 92; Minn v. Shackleford, 42 Ala. 202. A certificate of the clerk of a court in which a judgment had been rendered against the personal representative, substantially describing the judgment, has been declared a compliance with the statute. Ransom v. Quarles, 6 Ala. 437. In these, and in other decisions, it has been however declared that enough must appear from the claim, or evidence of it, which may be filed when taken in connection with the affidavit verifying it, to show an existing liability of the estate to the party asserting the claim. — Cook v. Davis, 12 Ala. 554; Hogan v. Calvert, 21 Ala. 298.

The receipt of the attorneys filed by Ligón, describes with particularity the three notes of the intestate, stating the date, the makers and payee, the amount, and time of pay*352ment of each note, and that each bears interest from date. The affidavit refers to the receipt “for the claims or notes therein described for two thousand and eight 16-100 dollars, interest to be counted in favor of the estate of Isaac H. Walker, deceased, against the estate of Thomas E. Winston, deceased, is correct, and that the same is justly due and unpaid.” Adhering to the decisions to which reference has been made, the receipt describing the notes, it must be declared there has been a substantial compliance with the statute; the affidavit fairly interpreted declaring the notes, not the receipt, is the demand preferred, and these prima facie, constituting an existing liability against the estate.

3. The allowance of a claim duly filed against an insolvent estate, is a right the statute secures to the creditor, unless objections directed to its merits, are filed within twelve months after the declaration of insolvency. — McNeil v. Mason, 20 Ala. 772]; Hardy v. Meachem, 33 Ala. 457; Thames v. Herbert, ante, p. 340. In this last case it is said: “ As to all matters of objection addressed to the validity or justness of the claim, which exist at the expiration of the period prescribed for filing objections, this is the effect of the statute.” But if matters subsequently occur, which are a valid bar to the demand, or which deprive the creditor of all right in equity and good conscience to share in the distribution of the assets, the statute does not preclude their introduction, and they may be shown at any time' before a final decree is rendered declaring the amount of the claim, and the rateable proportion of the assets to which the claimant is entitled. Thames v. Herbert, ante, p. 340.

4. The objection to the claims, in the form of a plea, presented by the appellant, was not filed within twelve months after the declaration of insolvency, and the matter of the objection existed when the claims were filed. This plea was stricken from the files on the motion of the appellee, and we think properly. The proper mode of objecting to pleading not filed within the time prescribed by the rules of the court, or by statute, is by motion to strike from the files. A demurrer would reach only defects apparent on the face of the plea] and would be an admission that it was properly filed. Powers v. Bryant, 7 Porter, 9; Cobb v. Miller, 9 Ala. 499; Hart v. Turk, 15 Ala. 675.

5. This objection having been stricken from the"files, the remaining objections were directed only to the time of filing, and the verification of the claim. An insufficient verification is amendable at any time before final decree. The sub*353sequent affidavit of Ligón contains much irrelevant matter, but if this was expunged, it identifies the notes, affirms their validity as claims against the intestate, and negatives their payment, curing whatever of defects may have existed in the original verification. There was no question of fact before the court, not triable by the record and files of the court, and it was not as matter of evidence the affidavit was introduced. It was simply an amendment of the original verification.

6. It is not until objections are interposed to the allowance of a claim, that the proceedings assume the form of a pending suit. When objections are interposed, “the court must cause an issue to be made up between the claimant and the administrator, or the contesting creditor, in the name of the administrator, in which issue the correctness of such claim must be tried as in an action of law against an administrator.” — Code of 1876, § 2575. It has been said, it is proper practice for the creditor to declare, and the administrator to plead, as in an action at law. — Ross v. Ross, 20 Ala. 104. On all contracts, express or implied, for the payment of money, (other than bills of exchange and other negotiable paper), actions at law must be prosecuted in the name of the party beneficially interested, though he have not the legal title. The proceedings not assuming the form of a suit until objections to the claims are filed, when they do assume that form, it is proper that they should be conducted in the name of the party who if the proceedings were then being instituted in a court of law, would be the proper plaintiff. If the claim has been transferred, the contest should be conducted and the judgment rendered in the name of the transferee, if he have the beneficial interest, and the claim is not a bill of exchange, or other negotiable paper; and if that is the character of the paper, in the name of the party having the legal title. The judgment rendered will be conclusive on the party entitled to sue at law, and to receive the money, the ends of right and justice accomplished, and the uniformity of judicial proceedings preserved. If after the transfer, the proceedings should be conducted in the name of the original claimant, he would be a mere naked trustee, and the beneficial interest would reside in the transferee, apparently a stranger to the record. The policy of our statutes, in all actions upon contracts for paying money, is to introduce as the actor, the party beneficially interested, entitled to receive the money, or to release or discharge the contract. These claims having been transferred to the appellee, before objec*354tion to their allowance were made, there was no error in permitting him to intervene and become the actor, when issues were formed as to their allowance. The case of Miller v. Parker, 47 Ala. 312, so far as it conflicts with these views, is overruled.

7. The jurisdiction of the court of probate over an estate as insolvent, can not be sustained on error, unless the report and decree of insolvency appear of record. The existence of these can not be presumed from recitals in the orders of the court. — Clarke v. West, 5 Ala. 117; McLaughlin v. Nelms, 9 Ala. 925; McBroom v. McBroom, 19 Ala. 173. Beyond recitals in the orders found in this record, there is no evidence of a report, or decree of insolvency, and so-far as now appears, the whole proceedings, and the decree from which the appeal is taken, are coram non judice. This compels a reversal of the decree under the authority of former decisions.

When the judge of probate by reason of interest, or relationship, is incompetent to discharge any of the duties devolving upon him, the statute requires the register in chancery of the district, to discharge the duty as if he were judge of probate. When the register assumes the exercise of this jurisdiction, the record ought affirmatively to show the facts which authorize its exercise — bare recitals in orders made by him, is an irregular mode of disclosing it.— Wilson v. Wilson, 36 Ala. 655; Hooke v. Barnett, 38 Ala. 607. When the judge is a creditor, having a claim filed against an insolvent estate, it is not merely the contest of that claim, if any is made, of which the register must take jurisdiction, as this record indicates was the course pursued. The j udge becomes incompetent as to the entire administration of the estate, and whatever of judicial duty is to be performed in reference to it, must be performed by the register. It is not necessary to examine critically the present record, with a view of ascertaining, whether it discloses the jurisdiction of the register. If the facts exist, the record should be made to conform to them.

Reversed and remanded.