Rowdon v. Young , 12 Ala. 234 ( 1847 )

COLLIER, C. J.

The ninth section of the act of 1843, “to amend the laws now in force in relation to insolvent estates,” requires every person having a claim against the estate of a deceased person, which is reported insolvent, to file the same in the clerk’s office of the proper orphans’ court within six months after the report is confirmed; every such claim shall be verified by the affidavit of the claimant; and the clerk shall indorse thereon the day on which it was filed, and shall keep a docket, or list of such claims, which shall at all times be subject to the inspection of the administrator and creditors of the estate ; and if no opposition be made to the allowance of the claim, as provided by the act, within nine months after the estate was declared insolvent, it shall' be allowed as a valid charge against the estate, without proof. The tenth section enacts, that within nine months after the estate is declared insolvent, the administrator, or any creditor thereof, in his name, may file objections in writing, to the allowance of any claim; and thereupon the court shall cause an issue to be made up between the claimant as plaintiff, and the administrator, or the contesting creditor in his name, as defendant, by pleading thereon as if the claimant had sued the administrator at law. If the issue shall be found against the claimant, his claim shall be rejected, and he shall pay all costs of the issue and trial ; but if the issue shall be found in favor of the claimant, for the whole amount of his claim, the same shall be adjudged to be allowed, and he shall recover his costs, &c. If part of the claim shall be found due, his claim shall be adjudged to be allowed to that amount, and the court in its discretion, may direct the costs to be paid, <fcc. The act then proceeds to direct, that within not less than nine, and not more than twelve months from the confirmation of the report of insolvency, the court shall proceed to make a final settlement, and adjudge to the creditors their rateable proportions, &c. [Clay’s Dig. 194, §§ 10, 11, 12.]

In Hollinger, et al. v. Holly, et al., 8 Ala. Rep. 454, it was said, that the statute, in requiring all claims to be filed in the clerk’s office within sis months after the estate is declared to be insolvent, is imperative, and operates so as to entirely bar and exclude from participation in the assets, all creditors who omit to do so. But it was held,.the direction that each claim shall be verified by the affidavit of the claimant, does not seem to be of such a nature as to warrant the rejection of a claim for its omission, when no exception is taken in the mode pointed out by the statute. The administrator, or a creditor, may require the claim thus to be verified; but if no such exception is taken, the want of an affidavit will not authorize its rejection; and it may be made after objections are filed to the claim. [Shortridge v. Easly, 1 Ala. R. 520; Brown & Co. v. Easley, Id. 564.]

In the case at bar, the only question is, whether the filing of an exact copy of a note, or other writing, evidencing a claim against the estate, verified by affidavit, is a sufficient compliance with the statute, and is it competent after objection made, to produce the original ? It may be questioned whether the creditor is bound to file all the evidence by which he expects to establish his claim; if he should not, we incline to think, if he has specified his claim with so much particularity that it cannot be misapprehended, lie ought to be allowed to sustain it, by the legitimate proof of its validity. The statute does not, in totidem verbis, require the evidence by which the validity of the demand is made apparent, to be filed, but merely the claim itself. It is perfectly certain, that the note or bill single is not the debt, but merely furnishes proof of it, and that the destruction of the evidence would not extinguish the liability to pay. [The Branch Bank at Mobile v. Tillman, et al., at this term; Moore v. Spence, 6 Ala. Rep. 506; Lee’s Adm’rs v. Fontaine and Freeman, 10 Id. 755.] We have seen that the affidavit which the act requires, may be made after an objection is taken for the want of it, and why should not other proof of the claim be admitted in the same manner? The copy of the bill single, with the affidavit, is quite as explicit as the most formal declaration ; and where an action is instituted in the ordinary mode, the plaintiff need not file the evidence of his demand until called for by the defendant, or it is required to entitle him to a verdict or judgment. Why should not the same indulgence be tolerated in a proceeding suchas that now before us? Besides, does not the statute, in directing pleadings to be made up, and an issue tried, contemplate the introduction of other proof by either party, where it is necessary, than the claim as filed ? Without stopping to answer these questions, we are of opinion that the plaintiff’s claim should not have been rejected, because the bill single was not filed simultaneously with the copy and affidavit, and that it was competent for him to produce the original at the trial of the issue. The judgment of the orphans’ court is consequently reversed, and the issue remanded to be tried again.