Cook v. Davis , 12 Ala. 551 ( 1847 )

GOLDTHWAITE, J.

1. The act of 1843 provides, that “ on the trial of any issue, directed to be made up and tried under it, either party dissatisfied with any decision, or charge of the judge trying the same, may except to such decision, or charge, and tender his bill of exceptions as in trials of suits at common law; and may, within twelve months thereafter, appeal from, or sue out a writ of error to such judgment as in suits at common law.” [Dig. 195, § 14.J Here the plaintiff in error does not bring himself within the spirit or letter of the statute, as no exception was taken to the action of the court, at the time of the decision, and consequently cannot now be heard to complain of errors which, it may be, passed without dispute at the time.

2. As, 'however, it may be supposed there is something in thé errors assigned, unless they receive a passing notice, it will be as well now as at any other time, to express our opinion, that no party who appears in a testamentary suit, and submits to a final decree, without exception to previous irregular proceedings will be heard to complain, for the obvious reason, that his duty was to call the attention of the court in the first instance, to the supposed irregularities. If he omits to do this, no injustice is done him by presuming their waiver, so far as he is concerned. This, independent of any other reason, would dispose of all the assignments of error, except those which question the correctness of rejecting the demands.

3. It is supposed by one of the assignments of error to have been the duty of the court, of its own volition, to cause an issue to be made up between the creditor and the administrator. The idea, we think, is at variance with the obvious intention of the statute, as shown by the section previously quoted, which seems to deny the right of revision when no exception is taken. Independent of this, the same phrase, “ shall cause an issue to be made,” occurs in many of our other statutes, and we are not aware it has ever been construed to impose on the court the duty of representing both parties.

4. Exceptions to claims filed by creditors under the act of '1843, divide themselves into two classes. The first, as to the nature of the affirmatory affidavit, which is required to be made and filed by the claimant, at the time of filing the claim. [Dig. 194, § 10.] This affidavit, if no exception is taken to the claim, entitles it to be allowed without further proof, and when not made by the claimant, may be called by an exception from the administrator, or a creditor in his name. [Hollinger v. Holly, 8 Ala. 454; Brown v. Easley, 10 Ib. 564; Shortridge v. Easely, Ib. 520.] The other class includes all matters of defence to the claim, as asserted, and is the one chiefly adverted to by the statute, when it speaks of an issue. The decisions above referred to having settled, the administrator may require this affidavit from the claimant, it is a matter of some importance to determine what the affidavit must contain, and by whom it is to be made. It may be difficult to say, that any precise form will cover all cases, but there is none in arriving at the conclusion, the claim as presented must, in connection with the affidavit, show something for which the estate is responsible. If we test the first claim by this rule, it will be evident that neither the receipt nor the affidavit, nor both together, establish any matter for which the estate is responsible. It may be the creditor yet possesses the means of collecting the note mentioned in the receipt, or it may be wholly worthless. As to this demand, there was nothing to elevate it into a claim, and its rejection was regular, even if an exception had been taken.

5. As to the other claim, it arises out of a note payable to Jones, Cook & Co., and there is nothing on the face of the paper, to show the plaintiff in error, is its holder, either, by indorsement, assignment, or delivery. It is not even asserted in the affidavit, that he is the claimant of the sum due by it from the estate. Without undertaking to decide the claimant should show a legal title to the claim presented, we are clear the statute requires the affidavit to be made by some one claiming either the legal or an equitable interest in the claim asserted. In this particular, this claim is also unsupported, and its rejection would be sustained, if an exception had been regularly taken.

We are unable to see any error in the record. Judgment affirmed.