Shackelford v. King , 24 Ala. 158 ( 1854 )

GIBBONS, J.

The merits of the petition filed by the defendant, King, praying that the plaintiff in error be cited to a final settlement as one of the executors of Job Mason, deceased, were settled when this case was in this court on a former occasion.—Vide King v. Shackelford, 13 Ala.- 436. The judgment of the court below, then under revision, was one dismissing the petition of King, on the ground that, in 1833, an order was made by the Orphans’ or County Court of Shelby, removing the cause to the Circuit Court of said county, because the then presiding judge had been of counsel in the case. This order, according to the decision of the Orphans’ Courtj deprived the Orphans’ Court of all jurisdiction in the matter. But the Supreme Court decided this to be a void order, and that the jurisdiction of the Orphans’ Court was unaffected by it. In making the decision, however, the court express their opinion as to the merits of the petition, and decide that it is well filed. This relieves us from any further discussion of the merits of this petition.

Before proceeding to the consideration of the points presented by the present record on the assignment of errors, we deem it necessary to remark, that much embarrassment seems to have arisen in the progress of the cause from an apparent disregard of legal principles, as shown by some of the decisions upon the subject of pleading in the court below. In the first place, we deem it quite absurd to apply to the pleadings in the Orphans’ Court either the technical rules or terms of the common law pleadings ; and in the second place, in their application as shown in the present record, there would seem to be an entire misapprehension of their meaning. To show this, it is only necessary to refer, for one moment, to the history of what, in a suit at common law, would be called pleading, but which in the present proceedings is certainly anomalous. To the plaintiff’s petition, regularly filed, setting out fully the ground of his claim against the defendant, and calling upon him to answer and make final settlement, the defendant comes in and answers, denying all assets in his hands and his liability to account to the plaintiff, or to the creditors, for anything in his hands or for anything whatever. At this point there is no difficulty, as the partios are fairly at issue, and it rests for the court to decide the matter of contest between them. But neither party' seems satisfied with this state of the pleadings, and the plaintiff files what he calls a replication to the defendant’s answer, in which he avers simply what he has already averred in his first petition, viz., that the defendant is liable to account for the amount of the Farrell note, as security thereon, he being co-executor of the last will and testament cf Mason, deceased. To this replication the defendant demurs, after having, by his previous answer to the petition, admitted the legal sufficiency of the same facts therein alleged, and forming therein the gist of the whole petition; and (strange to say) the court, with the opinion of the Supremo Court expressed directly upon this point before it to the contrary, sustains the demurrer to the replication. The plaintiff then takes issue upon the defendant’s answer; and we should naturally suppose that the trial would now proceed, as the parties are once more at issue, and precisely where they were when the defendant filed his answer to the petition; but no! the defendant now demurs to the plaintiff’s petition, and (strange to say) the court sustains the demurrer, thus overruling, for the second time, the decision of the Supreme Court expressed in that very cause, and with the decision before it. After all this, when, according to the ordinary understanding of the terms of pleading, there was no cause in court, the defendant pleads the statute oi limitations, to which a demurrer is filed, and the demurrer sustained by the court.

Of this jumble of legal verbiage — this misapplication of legal technicalities — we can make nothing. In the discussion of the various points presented by the record, we have resolved to do what the Orphans’ Court should have done, viz., hold the parties to the issues which they have made, and disregard everything in the shape of pleading that has arisen subsequent to the formation of such issues. After the petition was filed, and the answer thereto, the parties were at issue, and the Orphans’ Court should have disregarded and stricken out everthing in the shape of pleading, arising after that time, that is shown in the present record, as soon as it arose, until the answer of the defendant had been withdrawn. The duty of the Orphans’ Court was, to inquire into the facts alleged in the petition; and even whether the answer of the defendant was formally filed or not, could make but little difference, except, that by so filing his answer, he admitted the legal sufficiency of the petition, and while such answer remained he could not be heal'd by way of demurrer.

The first assignment of error is, that the court erred in settling the estate as one declared insolvent.

This assignment of error, in our opinion, is not well taken.— It appears, by the record, that the executors, both King and Shackelford, as long ago as the 16th of April, 1828, made a report of the assets and debts of the estate, by which it appears that the assets were $4169 48, and the debts $4816 86 ; and on the same day the court accepts the report, in which, says the court, cc it appears that the estate is insolvent,” and orders that the report be recorded. At the same time it proceeds, as in an insolvent estate, to take the legal steps for the sale of the real estate of the decedent. This, according to the law as it then stood, was all that was necessary to give the court jurisdiction of an estate as insolvent; and having once obtained jurisdiction, it would retain it until it was finally settled, or at least until all the debts were paid and the estate shown to be solvent. '

But it is insisted, in the second assignment of error, that the court erred in taking jurisdiction of the cause, after it had been finally disposed of by the entry nunc fro tunc, of the 12th of March, 1849, of the judgment upon the demurrer to the petition, as of the first of June, 1848; and as this demurrer put an end to the whole proceeding, therefore, after this judgment was formally entered nunc fro tunc, there was no longer any case in court. The remarks which we have already made as to the pleadings in this cause, we deem a sufficient answer to this assignment of error. The entry of this judgment nunc pro tunc, was, at best, but part and parcel of the jumble of legal technical terms which are so abundant in this case. We have already stated, that we should disregard entirely all the show of pleadings after the parties were at issue, and this judgment is only an extension of what should, in the state of the record at the time it was rendered, never have had a beginning.

It is also assigned for error, that the court did not appoint commissioners to settle the estate. As we construe the act of 11th of February, 1850, it was not the duty of the circuit judge to appoint such commissioners. Under the law, as it stood prior to the passage of this act, it would have been the duty of the Circuit Court to have appointed commissioners; hut the language of the act is: “And said court shall take jurisdiction of, and proceed therein, as the Probate Court might have done.” This language we deem clear and unequivocal. It is simply the substitution of the circuit for the probate judge; and in such cases, the Circuit Court becomes, for the time being, a Probate Court, and should, in all respects, be governed by the rules operating upon the Probate Court.

The fourth and fifth assignments of error, that the court had no jurisdiction to settle the estate in the manner in which it did, and that the court erred in the decree which it rendered in the canse, we do not deem it necessary to notice, except to remark, that we consider them as covered by what we have already said or shall hereafter say in the progress of this discussion.

To the sixth assignment of error we have but to remark, that we do not consider that the statute of limitations of six years applies to the case presented by the plaintiff’s petition, and the demurrer to it was therefore properly sustained.

The seventh and last assignment of error presents the various matters exhibited by the bill of exceptions. It seems that, at the tbresbhold of the trial of the cause in the Circuit Court, the defendant made four objections to proceeding with the trial, to-wit: 1st, that it did not appear from the record that any sufficient notice of the settlement had been given, by publication or otherwise ; 2nd, that no citation had issued to Shackelford to appear and settle his accounts ; 3rd, that the court was bound to appoint commissioners to settle the^estate; 4th, that the court had no jurisdiction of the cause.

With regard to the first of these objections we have to remark, that this case had been pending in court since 1846, and the defendant had bad an abundance of time to l ake all necessary steps to call in the creditors of the estate and other persons interested therein. When an executor goes into court to settle his accounts, it is his duly to see that the proper steps are taken to give the necessary notices. The record shows no effort on the part of the defendant to give the legal notices, and be would not be beard to make the objection on the trial that he had not done his duty. Besides, in the situation in which this defendant presents himself before the court, we do not regard his position as one to which the ordinary rules as to notice would be applicable. He is not the sole executor, nor is be called before the court but for a single purpose, viz., to pay in the amount of the note, as to which the other and active executor has no other means for the enforcement of its collection. Besides, the estate is an insolvent one, and all the creditors are parties to the proceeding; if they are satisfied with the notice given, whatever it may have been, or if there was none at all, it does not lie with the defendant to make the objection.

. As to the second objection, it is sufficient to say, the defendant answered the petition of the plaintiff on two several occasions, viz., once on the 14th of December, 1846, and again on the 13th day of May, 1848. These answers, independent of two notices found in the record, one served on him and the other on his counsel, by the sheriff, and citing him to appear before the court and settle his accounts, we think preclude him from saying that he has not been cited to settle bis accounts. Besides, that is a novel objection for a man to make, in person or by counsel, in open court on the trial.

As to the third and fourth objections, they have already been disposed of by what has been already said in the preceding remarks.

We see no error in the court’s looking at the papers in the cause on the trial, nor in allowing the plaintiff to offer in evidence the note of Job Mason, due to himself, without proof of its execution. Nor was there error in allowing the note to be read in evidence, on which the defendant is sought tobe charged, without proof of its execution. The execution of neither of these notes could he denied, without being put in issue by the proper plea. Nor was there error in. the court’s compelling the defendant to contest the plaintiff’s claim immediately, if at all. It surely would have been most extraordinary,- if, after the trial was in part concluded, the defendant could, for the first time, raise an objection to the justice of the plaintiff’s demand against the estate of Mason, and have allowed to him then three months more for the purpose of contesting the same. The court was right in proceeding with the trial.

The defendant then contended, that the estate had never been declared insolvent, and objected to proceeding further for that reason. This,objection has already been disposed of by what has already been said upon this subject.

“ The defendant then objected that there was no sufficient proof of any claims against the estate, and that the creditors had not proved their claims sufficiently and legally.” We hav6 already seen that the plaintiff had sufficiently proved his claim, and if he did not object as to the degree of proof of the other creditors, and none of the creditors made any objections, we see no reason why the defendant should be allowed to make any.— Besides, it is not stated what the proof was, which was made by the creditors, other than as to that offered by the plaintiff, and, therefore, it is impossible for us to say whether the proof was sufficient or not. This view is at once sufficient to show that there is no error apparent from this ruling of the court below.

The defendant then proved, by the plaintiff, that his particular demand had never been presented to him as co-executor, and on that account moved the rejection of the plaintiff’s claim. The court overruled this objection, and we think very properly. On referring to one of the early schedules of the debts of said estate, filed in the Orphans’ Court by the plaintiff and defendant, as co-executors of the last will and testament of Job Mason, deceased, we find this claim of the plaintiff there in the schedule, and the same is signed by the defendant as one of the executors. This was as long ago as 1828. No objection seems to have been made to the plaintiff’s demand, from that time to the present, and yet the defendant has been all the while the co-executor of the estate. We think it is now too late for the defendant to deny that the claim had been presented to him; in other words, that his acts in the premises estop him from denying such presentation.

We have but to add, that we find no error in the record of which the defendant can complain, and the judgment of the court below is affirmed.

Ligón, J,, not sitting.