Thompson v. Bondurant , 15 Ala. 346 ( 1849 )

DARGAN, J.

The defendants alledged twelve grounds, called pleas in the record, why the execution should be quashed. The plaintiff, by way of demurrer to some, and by motion to strike out others, insisted, that all of them were insufficient to authorize the court to grant the motion. The court decided them all to be insufficient to quash the execution, except the first, second, third, and eleventh pleas ; these were decided to be sufficient in law to quash the writ.

The plaintiff then took issue on the eleventh plea, but not on the first, second, and third. It seems that atrial was had on this issue, and the proof introduced in support of this plea, and also to prove it untrue in fact, is made part of the record by the bill of exceptions.

The court granted the motion, and quashed the writ, and therefore, to determine whether the court erred, or not, we must examine the legal sufficiency of the first, second, and third grounds alledged by way of pleas, and also must determine whether the evidence shows the eleventh plea, to be true in fact.

The first ground alledged by way of plea, is, that Curry, Eskridge, Rains, and Lee, four of the securities of Bondurant, as sheriff, died before the final decree of the orphans’ court was rendered against him; and as the execution purports to be issued against these, as well as against the other securities, there is no judgment to support it.

The rule of practice is well settled, that if a judgment be rendered against two, or more, and one defendant dies before execution is issued, it may be issued as against all the defendants, but can be levied on the goods of the survivors only, and is in fact an execution against them alone ; but as it corresponds with the judgment, it is regular, and cannot be quashed. 3 Bibb’s Rep. 334; Davis v. Helm, 3 S. & Marsh. 17. But an execution must follow, or correspond with the judgment as to the parties, and if issued against two, but the judgment is rendered against one. alone, the execution will be quashed. 2 J. J. Marsh. 137.

Guided by these rules, it is only necessary to determine, whether the bond, ,on which the execution issued, had the force and effect of a judgment against all the securities, against whom the execution purports to have been issued.

When a final decree has been rendered in the orphans’ court in favor of a distributee, against an administrator, and an execution has been issued thereon, and returned no property, the bond given by the administrator, has the force and effect of a judgment, and execution may issue against all the obligors. Clay’s Dig. 304. The bond, the rendition of the decree against the administrator, the execution, and the return thereon, no property by the sheriff, are the matters of record constituting the judgment; and all the facts must appear of record, before the bond can have the force and effect of a judgment ; and if one of the securities to the bond die, before all these facts appear of record, the bond can not have the force and effect of a judgment against him ; because no judgment can be rendered against one, not in esse, And if the bond did not have the force and effect of a judgment against these securities, at the time of their death, nothing subsequent to their death, could give it the effect of a judgment against them. As the first plea shows the death of these four securities before the decree even, was rendered against Bondurant, it shows that there was no judgment against them at the time of their death, and consequently the execution does not correspond with the judgment as to parties. But instead of quashing the execution, because it did not- correspond with the judgment, as to parties, it was the duty of the court to have amended it, by striking out the names of those against whom the bond did not have the force and effect of a judgment, during their life. Cawthorn v. Knight, 11 Ala. 579; Sheppard v. Melloy, 12 Ib. 561. The court therefore erred in holding the first, second and third grounds, alledged, sufficient in law to quash the execution.

The eleventh ground alledged, why the execution should be quashed, is, that Bondurant was not administrator. The evidence shows that Dunlap had been appointed administrator in chief, who settled his accounts, and resigned, but no resignation in writing was found of record.

The minutes of the orphans’ court, show an order, directing letters of administration to be issued to Bondurant, as sheriff. It was shown that he was sheriff, and under this order received the notes, and accounts, that had been collected by Dunlap,-and gave his receipt for them as administrator. In the case of Henry v. Brasher, 8 Porter, 559, it is said, that “ letters of administration are but the evidence of the authority of the administrator, and he may act without them, if the record shows his appointment.”

We think it clear, that if the orphans’ court orders letters of administration to issue to one, and he complies with the statute, by giving bond, and then assumes to act as administrator, that neither he, nor his securities can object, when sued on their bond, that letters in fact did not issue to him. As Bondurant was sheriff, he was not required to give a new bond. His official bond as sheriff, became his bond as administrator, and as he assumed to act, under the order of the orphans’ court, as administrator, and received the assets not administered by the administrator in chief, giving his receipt for them as administrator, he is estopped from denying that he was administrator.

These are the only questions we can examine on this record, and our conclusion, is, that the court erred -in quashing the execution, but should have overruled itj so that it might correspond with the judgment as to parties.'

Let the judgment be reversed, and the cause remanded.