Mitchener v. Robins , 73 Miss. 383 ( 1895 )

Woods, J.,

delivered the opinion of the coui’t.

The first and second propositions argued in the brief of counsel for appellees, for brevity’s sake, may be considered together. The first is, that the estate of Holditch having been declared insolvent before appellant’s petition had been filed, no action could be brought against the administrator on any claim; and the second is that the administrator was improperly made a party to the suit, as he had no interest in or control over the exempt property of the decedent on which appellant was seeking to fix a charge for a privileged debt. Both contentions may be conceded to be sound, and yet it does not follow that the appellant may not have the relief sought, if otherwise clearly entitled to it.

This is not properly a suit on a claim against the administrator. The debt claimed, in its amount, has been allowed by the chancery court, and there is no controversy on that point, but the appellant now seeks only to have ascertained by the court the character of his debt, in order, under our statute, §1980, code of 1892, to have declared his right to proceed against the exempt property of the decedent, after he shall have established that his debt is that of a laborer, as that term has been defined by our decisions. The petition is not the foundation of an action to recover a debt strictly, but rather the origin of a proceeding in the court administering the estate to determine the class of claims to which the debt belongs, to provide the method of its payment, if found to be a privileged debt, and to fasten a charge upon the exempt property for any balanee unsatisfied after payment of the ratable proportion due on the claim by the administrator out of the assets of the insolvent-estate.

The cases of Breckinridge's Admr. v. Mellon's Admr., 1 How., 273, and of Anderson v. Newman, 60 Miss., 532, are analogous; and in Rosenthal & Co. v. Enevoldsen, 61 Miss., 532, this analogy is emphasized, and the latter case distinguished from the two former. In the first of the above-named cases it was held that a scire facias to revive a suit was not such an action as was meant by the statute; and in the second named case, the effort was by suit brought against the administrator and others within the six months next after the grant of letters of administration, to fix a charge upon the estate of the decedent, and to have satisfaction thereof by final process. The administrator was here a necessary party, and on his plea the suit was abated as to him. In the third named case it was said: “The case now before us differs from those heretofore decided, as it is neither the continuing of a pending suit nor an attempt to fix a charge on the estate, its sole purpose being to contest with the administrator the title of the estate to the property in controversy. It is, nevertheless, a suit brought against the administrator in his capacity as such, and one which could not be proceeded with in the absence of the representative of the estate, and is therefore at least within the letter of the statute. ’

But the case in hand on this appeal is unlike, in its essential features, this last case referred to by us. Here the effort is to fix a charge upon certain exempt property of the deceased in which the administrator is not interested. He was not a necessary party, and, as to him, the proceeding might have been abated on the hearing of the demurrer, but that would not have carried the case out of court as to the other parties. In chancery, a demurrer may be properly held good as to one respondent and bad as to another.

The remaining proposition put forward and relied upon by counsel for appellee, is that the appellant had obtained no “judgment for labor performed,” and, hence, under § 1980, cannot subject, in any event or to any extent, the exempt property. It is true that no judgment for labor performed has been obtained against the decedent, but it is equally true that none can ever be obtained, for, during the time allowed for securing such judgment, the debtor, by the act of God, has been placed beyond the jurisdiction of earthly tribunals. We have thus a case not within the contemplation of the statute, and the appellant is pursuing the only course left him; he is attempting, in the appropriate forum, to show that his debt is for labor performed for the deceased during his lifetime — -the wages of a laborer — and, further, to have that done which will, in effect, take the place and perform the office of the judgment, which, by no act or omission of his, it has become impossible for him to obtain. Clearly, this is a case requiring the restriction of the words of the statute to the ordinary cases contemplated by. it, and forbidding its enlargement so as to embrace an exceptional case not within the legislative design.

The foregoing views meet the substantial aspects of the case, and will control on another hearing.

Reversed.