Lyon v. Odom , 31 Ala. 234 ( 1857 )

STONE, J.

— It is one of the admitted facts in this record, that Odom paid the money which he seeks to recover out of Lyon, and for which he obtained a judgment in the court below. "Whether he paid it without authority, or under legal coercion, is the question on which the result of this case must depend.

It is here argued for appellant, that the appointment of James P. Bush, as administrator cle bonis non of the estate of Joseph K. Bush, deceased, was and is void, because the record does not show the jurisdictional facts. There is nothing in this record which enables us to determine this question, in favor of the appellant. The plea admits the removal of Kidd, the administrator in chief, and the appointment of Bush. ' True, the record from the probate court of Monroe does not inform us how, why, or when Kidd was removed; nor why Torrey was removed, and Bush appointed, as second administrator de bonis non. The agreement of counsel, taking the place of a bill of exceptions, does not purport to exemplify the whole record, or to set out all the facts. Neither can we discover that this was á question in the court below. Under these circumstances, we feel it our duty, to indulge every reasonable presumption in favor of the ruling in the primary court; and to presume that a good and sufficient reason exists, of record in that court, to justify its action. See School Commissioners v. Godwin, at last term, and authorities cited.

The pleadings, however, do raise the question of the validity of the decree in favor of James P. Rush, and against Leroy A. Kidd. That judgment was rendered on the petition of said James P. Rush, and without any personal service on Kidd, or his sureties. The record informs us that publication was made; and the court took jurisdiction of the case on the constructive service in that way perfected. Did the law authorize notice to be given by publication, in the case made by the petition in this record ?

In the absence of our statutes on the subject, an administrator de bonis non has no authority to reduce to possession any assets of the estate, other than such as remained in specie, and unadministered by the administrator in chief. These assets wore not in that condition. — Kelly v. Kelly, 9 Ala. 908; Ventris v. Smith, 10 Peters, 161; Nolly v. Wilkins, 11 Ala. 872. The statute “to regulate settlements in the orphans’ court,” approved February 4, 1846, enlarged the powers of the administrator de bonis non, and allowed a decree in his favor, for any balance found against the administrator in chief on his final settlement. — Pamph. Acts, p. 14. The Code (§§ 1876-7) provides for a like decree on the final settlement made by an administrator in chief.

It will be remembered that, in this case, the administrator in chief had so far settled his administration, as to show a balance in his hands, which the court directed should be paid to the heirs (distributees ?) when known. This was not a decree. We think, on a proper proceeding, this decreed balance, if the administrator de bonis non or distributees so elected, might have been decreed against the administrator, without further investigation of the accounts, provided ho did not show he was entitled to further credit or abatement.

If in this proceeding for the admitted balance, the administrator in chief had been served with personal notice of the filing and purposes of the petition, or if he had come in and made himself a party, no one would say that a judgment rendered on this state of facts would not be upheld. — Code, § 1877. There was here neither personal notice, nor a waiver of it.

In this ease, the regularity of the judgment of Push v. Kidd, comes up collaterally; and unless the judgment is void, it will not be declared inoperative, becausé of any errors or irregularities that may be found in the record. If the court had jurisdiction of the subject-matter and the parties, no matter how informal the proceedings, they would authorize the payment of the money by Odom, and entitle him to recover in this action. — Parmer v. Ballard, 3 Stew. 326; Duncan v. Ware, 5 Stew. & Por. 119; Story’s Conflict of Laws, §§ 545 to 550 ; authorities cited in Smith, administrator of Hunt, v. Ellison’s Heirs, at the present term.

The Code (§ 1878) authorized the probate court to state an account against the administrator in chief, “ from the materials in his office.” Here the materials consisted of an admitted balance in his hands. True, no formal statement of the account was made out; and probably, on error, we would reverse the case. Proceedings, however, were set on foot, and the court took action on those proceedings. These proceedings plainly disclosed a purpose to charge the administrator in chief with that admitted balance, and that a decree for that amount would be moved for against him. It is probable that we need not look to the petition in sustaining this decree, assailed as it is collaterally. The administrator was regularly notified by publication, under section 1879 of the Code. Whether the account was stated before or after the publication, was perhaps an immaterial inquiry, when the record came up collaterally. If the account was not stated before publication, this irregularity would, on appeal, secure the reversal of the case.

However the question last considered would be determined, if the record disclosed no other proceedings, we are satisfied that, in this case, although greater formality might have been observed, the decree of the probate court of Monroe was not void; and consequently, Odom was authorized to pay the amount of the decree to the administrator de bonis non. Having paid it, a right of action accrued to him on the bond of indemnity. Thus construed, the plea of defendant opposed no defense to the plaintiff’s action, and the demurrer to it was properly sustained. — The State v. Richmond, 6 Foster, 232-243-4; Brown v. Webber, 6 Cush. 560.

The judgment of the circuit court is affirmed.