Christopher v. Stewart , 133 Ala. 348 ( 1901 )

SHARPE, J.

Appellee advances the proposition that an appeal in this case is unauthorized, and we think it is correct. Appellant relies on subdivision 6 of section 458 of the Code, which provides among other things for an appeal “upon any issue as to. the allowance of any claim against insolvent estates.” 'The issues so mentioned are those which may be tried under section 313 of the Code whereunder “at ahy time within nine months [twelve months under the Code of 1886 here governing as to the limitation of time] after the declaration of insolvency, the administrator, or any creditor, heir, legatee, devisee, or distributee may object to the allowance of any claim filed against the estate, by filing objections thereto in writing; and thereupon the court must cause an issue to be made up between the claimant and objector, in which issue the correctness of such claim must be tried as in an action at law, if required; and if it is found for the claimant to the whole amount thereof, the same must be allowed, and such claimant recover the costs of the trial of such issue; but if against the claimant, the claim must be rejected, and the party contesting recovers the costs of the trial of such issue.” Objections which under this section must be filed within the prescribed time and which may be litigated ¡thereunder to a final determination are those questioning the merits or validity of the particular claim for matters apart from its status in respect of its filing. — Carhart v. Clark’s Admr., 31 Ala. 396; Bartol v. Calvert, 21 Ala. 42. 'Those which go to defaults in filing may be made at any time even on the settlement, for a claim not filed in due time is barred by force of the statute of non-claims and needs not to be contested on special issues in order to exclude it from participation in the estate. But where the claim has been properly filed a failure to file objections within the time allowed therefor, cuts off the right to contest it except for defenses arising after that time has expired. — Thornton v. Moore, 61 Ala. 347; Thames v. Herbert, 61 Ala. 340.

The objections stricken by the order here complained of were filed more than six years after the alleged decree of insolvency. Each objection is accompanied by a statement to effect that it accrued after the claim ivas filed, but these statements do not bring the case within the exception recognized in the cases last referred to since the exception applies only where the matter of objection arose, not merely after the claim is filed, but after the expiration of the time allowed in ordinary cases for filing objections. Of these objections, those based on the ground that claims after being filed, became barred by the general statute of limitations are without merit. As to claims against insolvent estates, the running of that statute is suspended at the time of their presentation. — Woodruff v. Winston, 68 Ala. 412. Declaration of this principle is expressly made in the present Code.' — Code, §§ 2817, 28.18. Usually the place for the adjudication of such claims is in the probate court, to the jurisdiction of which they are drawn by the decree of insolvency and their filing.

What we have written is not by way of reviewing the probate court’s action, but to show the objections were not such as issues ought to have been formed on, and that the order striking out the objections was not made in the trial of or in prevention of any issue of any claim within the meaning of the statute providing for appeals.

Appellant submits a motion, to be acted on if the order is held not appealable, for mandamus to require the probate court to entertain and pass on his objection. The power of this court ¡to grant original applications for mandamus is confined to cases in which no other court has jurisdiction. — 'Code, § 3826. The probate court is subject to mandamus from the circuit court and other courts of like jurisdiction, and for that reason, without regard to any other, the writ cannot be granted here. — State v. Hewlett, 124 Ala. 471; Ramagnano v. Crook, 88 Ala. 450; State ex rel. v. Williams, 69 Ala. 311; Ex parte Pearson, 76 Ala. 521; Ex parte Russell 29 Ala. 817.

Let the attempted appeal be dismissed, and the motion for mandamus be overruled.