Appling v. Bailey , 44 Ala. 333 ( 1870 )

B. F. SAFFOLD, J.

Mandamus lies from a superior to an inferior court to compel action, but will never direct bow it shall act, or control its discretion. "Where a court does act, such action can only be revised by the superior court on appeal or certiorari. — Life and Fire Insurance Company of New York v. Wilson, 8 Peters, 291; Lamar v. Commissioners Court, 21 Ala. 772. In this case there was no refusal of the court to act. It issued notice to the assignee to appear, and on his appearance, after full hearing and examination, adjudged that he had not the right to be made a party. As no appeal in such a case is- provided by our law, a certiorari was the remedy.

The interest of the parties requires us to decide the important question involved. By the 14th and 16th sections of the bankrupt law, the assignee was invested with all the assets of the bankrupt, with the right to recover them by suit in law or equity. The trust property held by the bankrupt did not pass to him, but any debt due from the estate to him, not liquidated, was transferred. As the executor had been removed and called to account, and claimed the demand of $8,000, no judgment could be rendered in his favor on account of his bankruptcy. The assignee was entitled to recover it in some way. What hindered him from doing so in the probate court ? The bankrupt law substituted the assignee to all the rights of the bankrupt which could be made available in the payment of his debts. The probate court, under the constitution of 1867, is one of general jurisdiction in all matters of granting letters testamentary and of administration, and of orphan’s business, and contracts for labor. The question for its decision was whether in a proceeding of which it had rightful jurisdiction it would, on motion, allow a party, civiliter mortuus as far as that proceeding was concerned, to be substituted by one who had succeeded by operation of law to all of his rights. We see no objection to it. The bankrupt law itself is sufficient authority for such action. — Ex parte Gist, 26 Ala. 156. If a distributee of an estate should become bankrupt, before distribution, his interest' would pass to his assignee, and it would be competent for the probate court to render a decree in favor of the assignee for such share.— Graham et al. v. Abercrombie et al., 8 Ala. 552. Why not in the case of a removed executor ? So far as the estate of Tyson has claims against the removed executor, they may be asserted against him as fiduciary. So far as he has claims against the estate, beyond his liability to it, they may be asserted in the probate court by his assignee.

The judgment is reversed and the cause is not remanded.