Brazier & Co. v. King , 16 Ala. 730 ( 1849 )

CHILTON, J.

Waiving the consideration of the question whether the plaintiff in error was in any event entitled to a judgment upon his garnishment without having first afforded John Steele, to whom the garnishee answers be was informed the interest of Boling Smith had been transfered, an opportunity of contesting, we will proceed to the investigation of the charge of the court which was excepted to, and which was, that if the jury believed the evidence, no such indebtedness from the garnishee to Boling Smith was shown as was the subject of garnishment at the suit of Smith’s creditors.

In Mock v. King, 15 Ala. Rep. 66, we held that the undivided interest of one of several distributees of an estate, in the hands of an administrator de bonis non, &c. is not subject to the process of garnishment. That decision is conclusive upon the plaintiff in error, so. far as respects the distributive share of Boling Smith in the estate of Jeremiah Smith, deceased, in the hands of the present garnishee. The only remaining question is, whether the facts set forth in the record authorised a judgment against the garnishee for the alleged balance due to Boling Smith, certified in the decree of final settlement made by the Orphans’ Court with Smith as executor of the estate of said Jeremiah Smith. Upon the settlement alluded to, the entry of the Orphans’ Court recites that the account of the executor, having been examined by the court, was qliowed, and ordered to be filed and recorded. The entry proceeds — “And it appears to the court from the account stated and allowed, that the said estate is indebted and in arrears to the said Boling Smith in the sum of twenty-three hundred and fifty-one 99-100 dollars.” The garnishee denies the existence of this balance in favor of Boling Smith, and insists that upon a fair settlement of his accounts as executor of the estate, he will be found largely indebted. What is the effect of the decree of the Orphans’ Court? It is insisted by the counsel for the plaintiff, that it ascertains the amount due from the estate, to B. Smith in his individual right, and which sum is chargeable upon the assets in the hands of King, the administrator de bonis non, and that inasmuch as the removed executor would be entitled to sue for and recover from the administrator de bonis non the sum thus found due him, the process of garnishment, which is the mere exercise of that right in a summary mode on the part of the creditor of Smith in his stead, will lie to recover the fund.

Without stopping to determine whether or not such action would lie, in case there really existed an indebtedness, as certified by the Orphans’ Court, it is sufficient for the present purpose to remark that the Orphans’ Court, although by the statute invested with jurisdiction to settle the accounts of the removed administrator or executor, and to render a decree in behalf of the administrator de bonis non under a recent statute, does not possess the power to give any judgment in favor of the removed executor against the administrator de bonis non. The sentence of that court, going beyond the discharge of the executor, was clearly coram non judice, and does not conclude the parties from showing that such balance does not exist.

In Jones & Conner v. Jemison & Stewart, 4 Ala. Rep. 632, it was held that the Orphans’ Court, on the final settlement of .an estate, had no jurisdiction to render judgment against any person but the representative of the estate to be settled. In the case before us, no judgment against the administrator de bonis non was entered. The balance was ascertained as incidental to the settlement of the account. The court could go no farther than to discharge the executor, and this was the effect of the settlement. (King & Ansley, adm’rs, v. Smith & Steele, 15 Ala. Rep. 264.) All beyond this was matter wholly without the jurisdiction of the court, and could not be received as evidence to charge the administrator. It follows from this-, view, as the settlement constituted the only evidence of the indebtedness of the estate to Boling Smith aside from his interest as a distributee, the charge of the court, which in effect denies its sufficiency to authorise a judgment against the garnishee, was correct.

Let the judgment be affirmed.