Langston v. Marks

Crawford, Justice.

John T. Marks, claiming to be a legatee under the will of John E. Langston, deceased, cited David M. Langston to appear before the ordinary of Jasper county, to submit to a settlement of his accounts as the executor of said deceased, and to pay over to him such amount as might be due him under said will.

' The executor appeared and answered the citation. The ordinary, at the hearing of said case, gave judgment against the petitioner, Marks, and in favor of Langston, the executor. Marks appealed to the superior court, where he obtained judgment against the executor for the sum of $150.00, with interest from the 9th of May, 1866.

The executor brings the case to this court, asking to set aside the verdict and judgment thus obtained, on account of the errors alleged to have been committed on the trial.

1. The first ground of error relied upon is a demurrer to-the petition of the plaintiff, which demurrer, not being found in the record nor in the bill of exceptions, we are unable to pass satisfactorily upon it; but supposing it to be a general demurrer to the petition, we see no error in its being overruled. This proceeding before the ordinary is by common petition, for the purpose simply of having that officer cite the administrator, executor or guardian to appear before him for a settlement of his accounts, and requires that enough shall be set out to give the court jurisdiction of the person and subject-matter, and when so done we do not see that it is demurrable.

2. The next ground of error which we consider is the ruling of the court on plaintiff’s motion to strike the first plea in abatement filed by defendant, and in which it was alleged that the plaintiff had brought his suit to the court of ordinary for the same cause of action, that it had been appealed to the superior court where it had been dismissed, and that this suit had been recommenced without the payment of costs as required by law.

Upon this motion to strike, the court announced that if plaintiff would amend his petition and set forth that the failure to pay was owing to his inability from poverty, that then he would sustain the motion to strike, and the amendment having been made, the said plea was stricken.

Section 3446 of the Code provides that in all cases where there is a non-suit, dismission or discontinuance of a case, that the plaintiff may recommence his suit on the payment of costs. We have searched for the authority by which a pauper affidavit may be made in lieu of this statutory requirement. There is no case where such a legal right is granted, except upon special legal provision. It required a statute to authorize it in appeals, in claims, in application for a supersedeas, in cases brought to this court, as well as to relieve parties from costs here when the usual pauper oath is filed in the court below.

It may be said that the ruling of the judge below falls within the spirit of our legislation ; yet, whenever courts go beyond the provisions of the law, because their judgment is that their rulings are within the spirit of the law, we do but substitute as many varied views of what falls within its spirit as there are judges pronouncing it. We think, therefore, that whenever a statute requires a particular thing to be done to entitle a citizen to the enjoyment of a right, he must comply with the requirements before he can enjoy the right. And we are of opinion that he might so comply when the point was made against his proceeding with his second suit. There may be good reason why there has been no legislation upon this subject, as may be illustrated by this case.

In 1870 this executor was cited before the ordinary to settle this same estate; after the hearing, his judgment was for the defendant; the plaintiff appealed, and before the superior court it was dismissed ; again in 1876 this plaintiff brought the executor before the ordinary whose judgment was appealed from, and again it is alleged that it was dismissed by the judgment of the superior court; once again in 1879 the plaintiff cites the executor before the ordinary in this suit, and it is on its trial in the superior court that he is met by the plea of the non-payment of costs under the statute, and the ruling complained of made.

3. Another important question made by the record is the admission of the will of the testator in evidence over the objection of defendant, because of the illegal manner in which it was claimed that the same had been probated. It is perhaps needless to say that the judgments of the courts of ordinary in this state in matters appertaining to wills, are judgments of courts of general jurisdiction, and must be recognized as legal and binding until set aside or reversed. If, however, it should appear on the face of the proceedings that the judgment rendered was a nullity, as is insisted upon here, then of course it should be so held.

In the present case, if nothing else appeared than what the defendant desired to put in evidence, it might beheld that the proceeding before the ordinary of March 6th, •1865, was not a proper probate of the testator’s will; but the order and judgment passed at the May term, 1865, relieves the question of all embarrassment.

Besides this the defendant accepted letters testamentary, was qualified under the rule, and proceeded to administer the estate under its direction.

4. The plea of res adjudicata covered by two of the grounds of the motion for a new trial was not sustained by the proof, and therefore the judge committed r,o error in refusing to charge as requested, nor in giving the charge excepted to.

5. The request to charge as set out in the 14th ground of the motion for a new trial touching the good faith, diligence and prudence with which the executor was required to act, was not fully covered by what was charged, and we think that the request to charge should have been given.

6. As the case must be remanded for a new trial, we express no opinion as to the sufficiency of the evidence to support the verdict.

Judgment reversed.