Skinner v. Frierson , 8 Ala. 915 ( 1846 )

GOLDTHWAITE, J.

1. The questions involved in this cause, require us to ascertain what effect is produced on a pending suit against an administrator by his resignation of the trust; as well as the mode by which the fact of resignation shall be made known to the Court and adverse party. The object of a suit against an administrator is to obtain satisfaction, and the general effect of it is to charge the assets of the estate ; but beyond this the judgment has the effect also to charge the administrator personally, as well as his sureties, unless the assets are administered in due course of law. As the administrator can be made responsible only because of a debt due from his intestate, it is necessary to ascertain that fact by a suit against him as the representative of the estate, before he can be made personally liable. [Thompson v. Searcy, 6 Porter, 393.] One of our statutes permits the resignation of an administrator ; [Clay’s Dig. 222, § 9,] and another provides, that any suit commenced by or against a personal representative of any testator or intestate, may be prosecuted by or against any one who may succeed to the administration ; [Ib. 227, § 30,] but if the effect of these enactments is to dischai'ge the resigning administrator, without shewing what disposition he has made of the assets received during the continuance of his trust, the creditor might be turned frnm one to another without end by the mere fact of resignation. This, however, is provided against by the statute which permits the resignation, and the administrator and his sureties is by that declared bound for all the assets and effects which shall not have been duly administered or applied ; or shall not be delivered to the sue-cessor in the administration. [Ib. 222, § 9.] From what has been said in connection with these statutes, it is evident a plaintiff is not compelled to make the succeeding administrator a party to a suit already commenced, though he has the privilege to do so if he chooses. It is also evident that he may proceed with his suit although the resignation is suggested and shown, unless the resigning administrator is also able to show one of the two alternatives of the statute, in his discharge ; that is, either a due administration, or a transfer of all the assets to the succeeding administrator.

2. From these principles may be deduced the form of the plea appropriate to a resigning administrator. At common law, although an administrator had administered all the assets in his hands, yet the creditor, upon confessing the plea of plene admin-istravit, was entitled to a judgment quando accederunt; but if the fact was so found on the trial of the issue, the action was discharged. [2 Lomax on Ex. 446, §11.] In this particular our statutes seem to work no change ; but, inasmuch, as they provide, in effect, for the discharge of a resigning administrator when he has complied with what is required, it follows, that his plea must be so modified as to produce that discharge as a consequence of his compliance with all that the law requires. As the creditor is entitled to charge the administrator and his sureties, when the assets have not been applied in due course of administration, or have not been transferred to the succeeding administrator, it also follows, that he is entitled to controvert these facts, as well as the fact of resignation. The consequence is, that although the suggestion of the resignation, when that is made with the assent of the plaintiff, may have the effect to discharge the resigning administrator from the suit, and authorise the admission of a new party, yet, when not assented to, is of no effect whatever, [Winslett v. McLemore, 6 Ala. Rep. 416,] and the party is driven to his plea, which to be sufficient to discharge the action, must show not only the resignation, but the other matters essential to a full discharge.

3. It now sufficiently appears, that the attempt of the defendant to discharge himself from the suit by the suggestion of his resignation when the cause was called for trial, was not the proper mode ; but it is equally apparent, that if the facts were as suggested by him, he had no further concern with the cause. His connection with the estate had ceased, and not being in fact or in law, the administrator, a judgment obtained against him in that character, could have no effect to charge a succeeding administrator. If the plaintiff’s object was to charge the assets of the estate in the hands of the succeeding representative, the suggestion should have been confessed, and a sci. fa. taken to make the necessary party. It will be borne in mind, that the defendant, previous to making this suggestion, had pleaded the plea of plene administravit, which was confessed, and a judgment quando ac-cederunt prayed for. This confession of full administration has relation certainly to the time of pleading the plea, even if it be not referred to the rendition of the judgment on it; [2 Saund. 219, note 2; Moore v. Quinn, 6 Term, 14,] from which it is evident that nothing is involved here but the costs of this Court, because, if the administrator, at that time had resigned, it is im possible that any assets could come to his hands afterwards as administrator. Although, to the parties, this decision is of no importance, we deemed it proper, on questions so important in gen eral pi'actice, to pursue conceded analogies rather than let in a loose and unprecise mode of practice. It is scarcely necessary to add, that the evidence offered, was applicable to none of the issues, and therefore was correctly rejected.

4. The judgment as entered, however, is entirely irregular. On the confession of the plea of plena administravit, the proper course would have been to enter an interlocutory order to stay the final judgment until the issues were determined. [2 Lomax on Ex. 446, § 10.] After the verdict, finding these issues for the plaintiff, the entry should have beenfor the plaintiff to recover the amount ascertained, to be levied of the goods, &c. of the intestate, which thereafter should come to the hands of the administrator to be administered ; [lb. § 14,] but instead of this, the judgment is a general one, de bonis intestatis, the effect of which might be to charge the administrator personally, after a fi. fa. returned nulla bona. According to our general course of practice, under ordinary circumstances, this would be considered a mere clerical misprision of the clerk; but here the Court was asked to direct that no general judgment should be entered. The refusal of the Court to give this direction, shows sufficiently, that the error is attributable to the Court; and though the letter of the statute directs a reversal only when an amendment of the judgment has been refused in the Court below, [Digest, 322, § 55,J yet a refusal to direct the proper judgment, seems equally within the spirit of the act.

For this error the judgment must be reversed, and here rendered quando accederunt.