Mims v. Sturdevant , 36 Ala. 636 ( 1860 )

A. J. WALKER, C. J.

This was a proceeding instituted by suggestion in the orphans’'court, in 1846, by a legatee, for the purpose oí obtaining a judicial ascertainment that'-a certain slave, not included in the inventory, belonged to the testator’s estate; and of further obtaining a judgment that the executor should stand chargeable with the same, as a part of the estate. It is urged now in this court, that the orphans’ court had.no jurisdiction of the proceeding, disconnected as it-is from a settlement of the administration upon the estate; and that this court ought now to reverse the decree of the court below, and render a judgment dismissing the entire proceeding. We do not now determine what ought to be-the decision of this court upon the question of the jurisdiction of the orphans’ court, if it were presented to us unembarrassed by the previous decisions in this case. As bearing upon that question, we refer to the cases of Dobbs v. Cockerham, (2 Porter, 328,) and Merrill v. Jones, (8 Porter, 557.) This case has been twice before in this court; once at the J une term, 1850, and again at the June term, 1853. The decision in the case when it'was first in this court, is not reported. The decision made when the case was here the second time, is reported in 23 Ala. Rep. 664. In both instances, the judgment or decree of the court below was • reversed, and the cause remanded. The two judgments of this court, reversing and remanding- the cause to be further proceeded in, involved the assertion that the court below had jurisdiction of the subject-matter; for the judgment rendered was manifestly improper, if the court below had no jurisdiction. The decision of this court, thus virtually asserting the jurisdiction of the court below, is the law of this case, and we cannot rule in opposition to it. — Matthews, Finley & Co. v. Sands, 29 Ala. 136; Skillerns v. Mays, 6 Cr. 267.

[2.] The court below did not err in excluding evidence of the unsworn declarations of the plaintiffs’ witness, as to the manner in which his testimony was taken, his condition at the time, and his Knowledge of the facts proved by him.

[3.] This court decided in Long v. Davis, (18 Ala. 801,) that a permanent absence from .the jurisdiction on the part of a witness will authorize the .reading of his testimony given in a former trial of the cause. Such, we have no doubt, is the correct rule in civil causes. — 1 Greenleaf on Ev. § 163, note ; 1 Phil. Ev. (C. & H.’s notes,) 393, 394; Finn’s case, 5 Rand. 701.

[4.] Notwithstanding there is a contrary tendency in our past decisions, we think it a proposition both reasonable and sustained by authorities, that a witness who has made a written memorandum of facts presently upon their occurrence, and who does not remember the facts, but is able to swear that he knew the memorandum to be correct when he made it, may read the memorandum as a part of his evidence to the jury. — Holmes v. Gayle & Bower, 1 Ala. 517; Vastbinder v. Metcalf, 3 Ala. 100; Downer v. Rowell, 1 Ver. 343 ; 2 Phillipps on Ev. (C. & H.’s notes,) (4th Am. ed.) 918; 1 Green, on Ev. §§ 437, 438 ; Burton v. Plummer, 2 Ad. & El. 341. We do not decide, upon the record before us, whether the memorandum made by the witness Gumming, of what Hardin swore- upon a former trial, should have been read to the jury. The principles which we have laid down above will be sufficient to guide the court upon a future trial, in determining upon the admissibility of the evidence. If there be any deficiency in the testimony of Cumming, it will probably be supplied on a future trial.

[5.] The opinion given by the probate judge upon a former trial was not, updn any principle known to us, admissible in evidence.

[6.] The habit of Britton Mims, as to not purchasing property without seeing it, in connection with the peculiar circumstances of thÍ3 case, may have some bearing upon the question of fact in the ease; and we decide, with some hesitation and doubt, that it was competent evidence for the executor, and against one asserting the title of Britton Mims.

[7.] The evidence proposed by the defendant, as to his permitting his slaves to labor on his father’s premises, should have been admitted. It contributed to explain the plaintiffs’ evidence, that the slave John had been-employed on-the premises of the defendant’s father.

[8.] The court erred in rendering judgment for the value of the slave against the defendant.- Such a judgment is foreign to the purposes of the proceeding. If such a judgment could be rendered in this proceeding, the defendant would be deprived of all opportunity to ■ show that the slave was required to pay debts, or for other legitimate purposes incident to the administration. The only judgment which can be rendered in the case is, that the slave belonged to the decedent, and is a part of the assets of the estate, and that the representative stands chargeable with him as such.

Reversed and remanded.