Henderson v. Henderson's Adm'r , 67 Ala. 519 ( 1880 )

STONE, J.

— Counsel for appellant seem to misapprehend the principle settled in the cases of Levert v. Read, 54 Ala. 529, and Shelton v. Paulson, 60 Ala. 578. It was not our intention to decide, in those cases, that a mere presentation of a claim to the administrator, within eighteen months after his appointment — made in the ordinary way, which prevents the bar of the statute of non-claim — per se dispenses with the necessity of filing the claim, verified, within nine months after the estate is declared insolvent. In the first of those cases, although the claim had been filed before the final decree of insolvency, it was done after the report of insolvency, and while proceedings thereon were pending. It was filed, verified, and was duly registered in the probate office. The claim remained in the office, and-the filing was transcribed in that office in the book entitled ‘ Docket of Insolvent Claims.’ We said : “ Mrs. Levert, in filing .the claim verified, did so with a view to a compliance with the requirements of the statute.” It is manifest that, in that case, no one was, or could be misled, by the fact that the filing antedated the decree of insolvency.

In the case of Shelton v. Paulson, the claim was also filed, verified, between the report and declaration of insolvency, and was left of file in the court. The Probate Court ruled the filing sufficient, “ being of the opinion, and so ruling and holding, that said claim had been filed in this court, as a claim against said insolvent estate, and all the while since said filing and docketing had remained in said court, or on file with the jaapers of said estate, the same having never been withdrawm after the declaration of insolvency.” According to this finding of the court, the filing in that case was evidently intended as a filing in the insolvency. It was filed four months after the report of insolvency, and yet before the decree; was verified, docketed, and the claim remained in the court all the while, until the settlement. We ruled, that, the claim asserted fell within the principle settled in Levert v. Read, supra.

In each of these cases, it can not be doubted the claim was intended to be filed as a claim against the insolvent estate. We did not, in our rulings, intend to dispense with such filing. What we intended to decide, and did decide, was, that when a claim was filed, verified, was docketed, or placed on the register of claims against the estate, the administrator and other creditors were furnished all the information needed in filing objections to it, and would not be heard to object that the filing was premature. The docketing or registration, was the notifying fact, which, in our opinion, disproved any and all injury that might result from a failure to wait until the decree of insolvency was pronounced, before verifying and filing the claim. A claim, not registered and verified, would furnish no excuse for failing to file within nine months after the declaration of insolvency. It is only when there is registration, or docketing, that this irregularity becomes harmless. A different rule prevails, when the claim is filed, verified, within the nine months. That being done, a neglect of the judge of probate to docket or register the claim would not invalidate the filing.

In the present record, it is, perhaps, shown that the claim was filed in the Probate Court, as a claim against Henderson’s estate, within eighteen months after administration was granted. How that claim, then an open account, was verified, is not clearly shown. Several years afterwards, this claim was reduced to judgment, and not long after that, the estate was declared insolvent. The disputed question is, whether the claim was filed, verified, within nine months after the decree of insolvency. We do not think the proof is clear and full enough to produce a conviction, either that in the original filing of the claim, it was verified as claims against insolvent estates are required to be, or that it was registered or docketed so that persons searching for information could obtain it. So, we need not inquire whether a filing in 1861, or 1862, in lieu of presentation as a claim against the estate, could be so made as to dispense with filing, verified, against the insolvent estate, in 1867.

The question in the case then remains, is it affirmatively shown that the claim was filed, verified, within nine months after the decree of insolvency ? The witnesses were examined before the register, sitting for the judge of probate, and on their testimony he found this issue in favor of the contestants, and disallowed the claim. Under the rule which obtains in such cases, we do not feel at liberty to reverse his finding. It requires a very clear conviction of error, to justify a reversal in such case. — Dam v. Mayor, 86 Ala. 304; Kirksey v. Kirksey, 41 Ala. 626; Howard v. Harper, 54 Ala. 629; Ex parte Nettles, 58 Ala. 268.

What is said above renders a consideration of all other questions immaterial. The testimony rejected did not tend to.strengthen the oral proof of filing; and hence, whether right or wrong, ruling did the appellant no harm.

Affirmed.