Little v. Heard , 16 Ala. 358 ( 1849 )

CHILTON, J.

By the second section of the Act of 1832, Clay’s Digest, 305, § 45, it is provided “ whenever any execution shall have issued on any decree made by the Orphans’ Court on final settlement of the accounts of executors, administrators, or guardians, and is returned by the sheriff “ no property found” generally, or as to part thereof, execution may, and shall forthwith issue against the securities of such executors, administrators or guardians.”

It is manifest from an examination of this statute, that to authorise an execution against the sureties in an administration bond, there must be — '1st. A decree made by the Orphans’ Court on final settlement of his account, against the administrator, which may be enforced by execution. 2d — An execution must actually have issued upon such decree, and have been returned no property found generally, or as to part; and 3d — There must be a bond, by which the securities are bound for the administrator’s default. See Thompson v. Bondurant & King, 15 Ala. Rep. 346-351. Do these three requisites concur in the case before us, to sustain the execution which was issued against the plaintiffs in error? If they do not — if the record fails to show every material fact necessary to support this summary judgment against the sureties, the court should have quashed the execution as to them.

It appears that Eleanor Knox, the widow, and John Steele, administered upon the estate of John Knox, deceased, in April 1840, and entered into bond in the penalty of twenty thousand dollars, with William Little and Robert Clanton, the plaintiffs ill error, as their securities.

A decree was rendered, on the final settlement against Steele, in favor of Heard, (who had married the widow) in right of his wife, and an execution was issued thereon, returnable to the court, awarding the decree, to be held the fourth Monday in November 1847. The stated terms of the County Court proper, for Sumter county, are holden the second Mondays in February and July (Clay’s Digest 299.) This execution being returned no property found, an execution issued, without any previous order of the court, against the securities of said Steele, returnable to said court on the 4th Monday in January 1848. This being stopped by the clerk, afterwards another issued and was superseded. We do not think that it requires any previous order of the court, after an execution has been duly returned against the administrator, * rio property found,” to authorise the issuance of one against the sureties. The statute is peremptory in its requisition, and seems to contemplate its issuance as a ministerial duty of the clerk of the court. It is required’®» be issued forthwith after the return of the previous execution unsatisfied. But we arc clear in the opinion, that according to the previous decisions of this court, the execution which issued against Steele, the administrator, and made returnable to the monthly return day of the Orphans’ Court, instead of to the stated term of the County Court, did not authorise the issuance of this fi. fa. which is sought to be quashed by the sureties. It has several times been decided by this court, that an execution issuing upon decrees of the Orphans’ Court on final settlements, should be made returnable to the stated or semi-annual term of the County Court, and that a sheriff is not liable to the summary remedy which the statute gives, by motion, for his failure to return such execution, unless made so returnable. By analogy, it would seem to follow, that the sureties to the administration bond could not be proceded against summarily in consequence of such irregular process. Were the question res integra, I should hold that the statute contemplated that executions issuing from the Orphans’ Court should be made returnable to that court, and not to the County Court. The statutes upon the subject recognise them as distinct courts, having, it is true, the same officers, but keeping distinct records, the Orphans’ Court having a special and limited jurisdiction, defined and prescribed by the various legislative enactments. But the question must be considered settled by the previous decisions — Westmoreland v. Hale, 11 Ala. Rep. 122; Graham v. Chandler, 12 ib. 829; and it would result in irreparable injury to many parties litigant now to disturb it. The execution in this case not having been made returnable as required by the rule recognised by the previous adjudications refered to above, there is no warrant for the subsequent execution against the sureties, and as that execution was also made improperly returnable to the Orphans’ Court, instead of the semi-annual term of the County Court, it was irregular, and should have been quashed. Another question however, comes up in this case, which is not entirely free from difficulty. Mrs. Heard, whose husband in her right, is enforcing the-execution complained of, was one of the administrators, and jointly bound with Little and Clanton, the plaintiffs in error, on the administration bond. The question then is, can one administrator by virtue of the statue before copied, enforce the collection of a decree against the co-administrator in her favor as distributee of the estate out of the sureties who are bound jointly with both administrators in a bond for the faithful performance of their duties, &c.

In King v. Shackleford, 13 Ala. Rep. 435, we held, that one executor, who is also a creditor of the estate he represents, may file his intention in the Orphans’ Court to compel a settlement and distribution of the estate, his co-executor having assets for which he fails to account. Nothing, however, is said as to the liability of their common sureties, for any default of the derelict administrator.

In Little, et al. v. Knox, administrator, 15 Ala. Rep. 576, it was held, that if administrators execute a joint bond, they are liable to a distributee for the acts of each other, and are both bound to protect the joint securities from the consequences of each other’s acts. If this be a correct exposition of the law, it follows, the sureties cannot be held responsible to one of the administrators for the default of the other. To hold the law otherwise would present the anomaly of the principal recovering against her own sureties for the default of her joint ob-ligor and co-principal. The bare statement of this proposition carries with it a sufficient refutation.

Let the judgment be reversed, and the cause remanded.