Holley v. Acre , 23 Ala. 603 ( 1853 )

LIGON, J.

1. The second assignment of error is the first-in order, and as such will it be examined. The first count of the declaration proceeds for the penalty of the bond alone, and is in the usual form of a declaration on a penal bond. It is therefore faultless, and the demurrer to it was correctly overruled.

2. The transcript of the proceedings in the Orphans’ Court, which was offered in evidence under the issue tendered by the rejoinder of nul tiel record, to the replication of the plaintiff, was pertinent to that issue, and should not have been rejected.

The defendant had pleaded covenants performed, to which the plaintiff replied the condition of the bond, and proceeded to assign breaches. In this replication he averred that the administrator had made a final settlement of the estate with the Orphans’ Court on the 8th of October, 1838, and on that settlement a balance was found in his hands, which the court proceeded to distribute among the parties entitled, and rendered a decree in favor of the usee in this suit and others, for the sum of 075 39 each, which the administrator failed and refused to pay; to this replication the complainant rejoined nul tiel record. The transcript offered fully sustains the replication, and shows assets in the hands of the administrator sufficient to pay the sum sued for; and it further shows the extent of Benjamin J. Hogg’s interest in these assets. This is sufficient to entitle him, (the sum to which he was entitled being unpaid,) to an action on the bond, against the sureties of the administrator, for a decree of the Orphans’ Court against the administrator is conclusive on Ids sureties.—Kyle v. Mays, use of Pond, 22 Ala. 692; Lampkin v. Heyer, 19 Ala. 228.

It is urged, however, that the final settlement and decree set out in the transcript are irregular. Suppose this were conceded, still it will not aid the appellant- Mere irregularities in a judgment or decree rvill not render it void, and for this reason it cannot bo collaterally impeached; and if the party to it, who complains of such irregularity, desires to take advantage of it, ho must do so by a direct proceeding. If, as in this case, he fails to do so until his writ of error is barred by the statute of limitations, the party claiming an interest under it will not be defeated in bis recovery when ho seeks it in proper form, on account of such irregularities.

8. The record from the Orphans’ Court being admitted, the judgment of the court on the issue of nul tiel record is proper, for the record described in the replication corresponds substantially with the ono offered in evidence.

4. Neither can we perceive any error in refusing the charge requested by the defendant. The plaintiff had read the bond in 'evidence to the jury, containing a condition for the faithful discharge of all the duties of administrator of the estate of Benjamin Hogg, deceased, and showing that the defendant was his security. He had also ¡shown by the record of the final settlement in the Orphans’ Court that the administrator had funds in his bands which he was ordered to pay to the use of the plaintiff, and no proof being offered to show this payment, it would have been gross error to have given the charge requested.—Kyle v. Mays, use &c., supra.

5- The charge given was in every respect proper. The plaintiff had made out his "right to recover, fixed the amount of bis demand, and the date at which it should have been paid, and his right to interest is unquestionable. As there was no conflict of testimony, it was proper for the court to charge in the language it did.—Kyle v. Mays, use &c.

There is no error in the record, and the judgment is affirmed.