Burke v. Mutch , 66 Ala. 568 ( 1880 )

SOMERVILLE, J.

This is a summary motion by one surety against another, on a sheriff’s bond, claiming contribution. The averment is made, that Hunter, the sheriff, had been appointed administrator de bonis non of the estate of W. S. May, deceased, by the- Probate Court of Lowndes county, and that the plaintiff in the motion had paid a decree against him as such administrator, which had also been rendered against the plaintiff and the defendant jointly, as sureties on said bond. A demurrer to the motion was sustained, on the ground that it failed to aver that there was no general administrator in the county of Lowndes, at the time of Hunter’s appointment; and this ruling is now assigned as error.

It is admitted, that the statute confers such power upon the Probate Court, only in the event of there being no general administrator. — Code of 1876, § 2368. The only question concerns the presumption as to its proper exercise, when it is collaterally assailed, as in this proceeding. We are of opinion, very clearly, that such averment is unnecessary. The constitution of the State confers upon the General Assembly the power to establish a Court of Probate, in each county within the State, “vnth general jurisdiction for the granting of letters testamentary and of administration, and for orphans’ business.” — Const. 1875, art. vi. §9. The constitution of 1819 (Art. v., § 9) was the same in phraseology, with the omission of the words “with general jurisdiction,” which were added only to speak the judicial interpretation repeatedly given it in the decisions of this court. In Gray’s Adm’rs v. Cruise (36 Ala. 559, 561), it was said, that “the jurisdiction of the -Probate .Court” [as conferred by the constitution of 1819], “in the grant of letters testamentary, and of administration, is original, general, and unlimited. It is, to that extent, a court of general, not limited, or special jurisdiction.” It was accordingly held, in that case, that an order of the Probate Court, granting letters of administration de bonis non, could not lie held void, in a collateral proceeding, because it failed to show the appointment and removal, resignation or death of the administrator in chief, — a jurisdictional fact as essential to the validity of the order, as a vacancy in the office of county administrator would be here.

We take the principle to be settled beyond all disputation, that where the Probate Court exercises the power to appoint an administrator of an estate, it is to be presumed that it previously ascertained the existence of the jurisdictional fact, without which the power could not be legally exercised; and its validity is not permitted to be collaterally assailed, or questioned otherwise than in a direct proceeding. Even if so directly assailed, such appointment would not be void, but voidable only.—Coltart v. Allen, 40 Ala. 155; Ikelheimer v. Chapman’s Adm’rs, 82 Ala. 676; Whorton v. Moragne, 62 Ala. 201.

The Circuit Court erred in sustaining the demurrer, and the cause is reversed and remanded.