Hanna v. Price , 23 Ala. 826 ( 1853 )

GIBBONS, J.

The first question presented on the present record is, whether it affords sufficient evidence to authorize the issue of an execution against the sureties of Price, on the judgment rendered against him in the Orphans’ Court of Benton County on the ¡7th of January, 1845, in favor of the plaintiff in error, as administrator de bonis non of the estate of the said James Riddle, deceased.

The evidence disclosed by the record is, the judgment against Price, the bond of Price as sheriff, on which the defendants Williams and Haynes are sureties, the pluries fi. fa. issued the 4th December, 1845, against all of the defendants, reciting the existence of a judgment against all of the said parties in the Orphans’ Court of Benton County ; and the alias pluries fi. fa. issued the 19th of December, 1850, being the one sought to be superseded and quashed. There is the additional evidence of the memoranda made upon th e margin of the minutes in the hand-writing of the person who was clerk of the court at the time the same purport to havo teen made, as follows : “ Fi.fa. issued April 22, 1845, to Wm. J. Willis, sheriff.” “ Fi. fa. returned “ no property found,” April 25,1845,” “ Mias fifia. April 28, 1845, to Wm. J. Willis, sheriff, against securities.” “ Pluries fi. fa. .December 4th, 1845, Wm. J. Willis, sheriff.” “Pluries fi. fa. returned “no property found,” January 7,1846.” “ Alias pluries ji. fa. issued I9th December, 1850, to 0. Subleit. Returned enjoined the 19th February, 1851. C. Sublett, sheriff.”

The above constitutes all of the evidence in support of the regularity of the execution, and on which the court below acted in quashing the same.

The act of 1882 (Clay’s Dig. 805 § 45) says : “ Whenever any execution shall have issued on any decree made by the Orphans’ Court, and final settlement of the accounts of executors, administrators or guardians, and is returned by the sheriff no property found generally, or as to a part thereof, execution may and shall forthwith issue against the securities of such executors, administrators or guardians.”

In order to sustain an execution against the sureties of an administrator, on a judgment or decree against such administrator, the record must show: 1st, the judgment; 2nd, the bond by which the sureties have become liable ; and, 3rd, the issue of an execution on said judgment against the principal, and return thereof by the sheriff “no property found." Thompson v. Bondurant & King, 15 Ala. 346. All these facts must concur, in order to sustain the summary statutory proceeding against the sureties. In the case before us, we regard the evidence of the issue of the execution against Price, and the return of no property found thereon by the sheriff, as entirely too defective. On the proof made upon this point, as disclosed by the bill of exceptions, the court was, in our opinion, warranted in regarding the same as offered insufficient to establish the fact that an execution had in fact been issued on said judgment against the said Price, and returned no property, as indicated by the memorandum of the clerk.

Waiving for the present the question as to the regularity of the execution, as to the time when it was made returnable, our conclusion is, that the evidence was insufficient to establish the fact that an execution ever issued on said judgment against said Price alone.

Where written documents are attempted to be proved, which are alleged to be lost, the commencement of the proof is to show that such documents actually existed by testimony directly to the point; and then, their loss being proved, it is competent to prove their contents. But in the present case, the mere memorandum of the clerk upon the margin of his docket or his minutes we cannot regard as legal evidence of any fact, until it is snown that such entries are the best evidence the nature of the case admits of. This is not shown in the present case, and we must regard the record as containing no proof that any execution ever issued on the judgment against the said Price alone, or that the same was returned as to him no property found.— It follows, as a necessary consequence, that the execution was correctly quashed as to the sureties, Williams and Haynes.

The next question presented is, whether it was correctly quashed as to íh’ice. The judgment which is sought to be enforced against the parties defendants, by the execution in question, is one rendered on the 17th January, 1845, against the said Price, as former administrator of the estate of James Riddle, deceased, and in favor of the plaintiff in error, as administrator de bonis non of said estate. The judgment itself shows that it was for a balance of money in the hands of Price received in the course of his administration and unaccounted for. The question now arises, whether the court,- at that date, had any power to render such a judgment. That such a judgment was erroneous, has several times been directly decided by this court.—Price v. Simmons, 18 Ala. 750; Willis v. Willis, 9 Ala. 722. These decisions go upon the idea, that the Orphans’ Court, being one of limited jurisdiction, can only proceed to render judgment in such cases as the statutes specially authorize ; and it would seem to follow, that whenever it exceeded its powers, its judgment would be not merely voidable, but void. Prior to the passage of the act of 1846, the Orphans’ Court had no power to order money in the hands of one administrator either resigned or removed, said money being realized from the assets of the estate, to be paid over to the succeeding administrator ; nor could it render any judgment in favor of such succeeding administrator against the preceding one, that would be valid so as to bar a recovery from the same party by the heirs, legatees or distributees of the estate, who were entitled to receive from the preceding administrator an account of his administration, and the balance, whatever it might be, in his hands; and such judgment, so rendered in favor of the administrator de bonis non, was erroneous, from the fact that the Orphans’ Court had no jurisdiction to render it, and was consequently not merely voidable, but void. This view of the case is conclusive, to show that the execution was a nullity as to all of the parties, and was correctly quashed as to all. The decision of the two questions, thus presented upon the ruling of the court below in quashing the execution, necessarily disposes of the questions raised up.»n the demurrers to the petition for the supersedeas, as those questions are indentical with those decided. Is follows that the demurrers were correctly overruled. As the questions already decided dispose of the entire case, we do not deem it important to consider the other question raised by the petition and relied upon in the argument. 4

The judgment of the court below is therefore affirmed.

Chilton, C. J., not sitting.