Jones v. Dyer , 20 Ala. 373 ( 1852 )

GOLDTHWAITE, J.

The only question presented by the record arises upon the rejection, by the Orphans’ Court, of the depositions offered in evidence. The ground of objection taken to the admission in the court below, and which has been insisted here, was that the action of the Orphans’ Court, upon the subject matter of the deposition, was concluded by the opinion and judgment of this court in the same case, rendered June Term, 1849, 16 Ala. Rep. 221; and that in reality nothing remained for the action of the Probate Court, except to render a decree in conformity with the decision of this court. There can be no doubt but that the court to which the case is remanded, is bound to proceed according to the principles of law determined by this court in the same case, and we have no doubt also, that in revising the proceedings of the Orphans’ Court, it is competent, in a proper case, for this court, by its judgment, to declare the proceedings regular to a certain point, and reverse from the point where the irregularity or error commenced. This was done in the case of the Executors of Sankey v. The Heirs of Sankey, 6 Ala. Rep. 607, and we see no reason to question the correctness of the practice; but in the case under consideration this course was not pursued. The court, it is true, held that the Orphans’ Court had committed no error in charging the administrator with the particular item, which is the subject of contest in the present case, but that there was error in relation to other items in the same account, and for those errors the decree rendered by the Orphans’ Court was reversed, and the cause remanded. The effect of the judgment bf reversal, was to vacate the decree in toto, and the parties affected by it stood in precisely the same position as if it had never been rendered. Simmons, Admr. v. Price, Admr., 18 Ala. Rep. 405; Dupuy v. Roebuck, 7 Ala. Rep. 484. The cases relied on by the defendant in error to sustain the judgment on this point, Johnston v. Glasscock, 2 Ala. Rep. 218, and Ex parte Sibbald, 12 Peters 488, are clearly distinguishable in principle from the case under consideration ; in both of these cases the judgment of the court below was not merely reversed, but a final decree was rendered by the Appellate Court, and the cases were remanded for execution alone. In the present case no decree was rendered, but the judgment of the court below was simply reversed and remanded. Upon the authority of the cases which we have cited, it follows that upon the reversal of the j udgment the rights of the parties were restored to the same condition as before its rendition, and that when the same item was again presented for settlement, the administrator had the right to offer evidence to show that the charge should not properly be made against him.

It is, however, urged that on an examination of the evidence rejected, it will be seen that it was applicable to no issue before the court, and was, therefore, properly rejected on the ground of irrelevancy. We understand the rule to be, that to authorize a court of error to reverse a judgment, on' account of any supposed erroneous decision of the court below, in the rejection of evidence, it must be shown that the fact intended to be est iblished by such evidence was material to the decision of the case then under consideration before the court; and the party excepting to such decision must, in his bill of exceptions, state sufficient to show the relevancy or materiality of the alleged erroneous decision to the case under consideration at the time such decision was made. Stone v. Stone, use, &c., 1 Ala. 582. Testing the materiality of the evidence offered and rejected by this rule, we find by reference to the record, that on the final settlement, the estate of the intestate was credited (which amounts to a charge against the administrator) with an item amounting, with interest, to $1580 28. This item is stated in the account in these words: “ 1844, August 14th.—By credit of twelve hundred dollars, entered on note of Samuel Jordan (signed A. W. per instructions of P. Lewis,”) &c., and in the same account and on the same side, another item thus stated: “ By cash received of Mrs. Eliza Jordon, on balancing accounts, allowing $250 wages per annum for 1842,1843 and 1844, to August 16th, 1844, to P. Lewis, as due on 1st January each year, crediting him by principal and interest of Samuel Jordan’s note to 1st January, 1845, excepting the $1200 claimed Toy administrator as a credit, &c.” The evidence offered is to the effect, that a note was held by the intestate on Samuel Jordan. That after the death of Jordan, Mrs. Eliza Jordan, on the 14th August, 1844, gave her note for twelve hundred dollars, payable to the plaintiff in error, which amount was entered as a credit on Samuel Jordan’s note, and the note of Mrs. Jordan delivered to the plaintiff in error, and that the credit was entered, the note executed and delivered to the plaintiff in error by the direction, and with the consent of the intestate. It is impossible to doubt in relation to the applicability of this evidence to the item of $1580 28, which was charged against the administrator, and on which the decree rendered against him was in part founded. There was, it is true, no express issue appearing upon the record, but the case was the final settlement of the accounts of the administrator, and the statement of the items composing that settlement, when taken in connection with the evidence offered, show clearly its relevancy to the case then under consideration.

The relevancy and materiality of tbe evidence offered being shown, it follows tbat tbe Probate Court erred in rejecting it, and as tbe question as to its sufficiency does not properly arise on tbe record as now presented, we bave only to add tbat tbe judgment is reversed, and tbe cause remanded.