Baber v. Woods

Brown, C. J. The record in this case shows that John Woods, the administrator of John Gray, deceased, made to the Ordinary his final return, showing a balance due the estate, which he filed with the Ordinary. And in his affidavit to the correctness of the return, he stated that this balance was funded in Confederate States bonds as the law required, and that the same was received and held in good faith. Within thirty days after the return was made, the guardian of the minor children of John Gray, deceased, filed objections to the return, on the ground that the administrator received the Confederate money, before the passage of the Act of April, 1863, by the Legislature, authorizing administrators to receive Confederate Treasury notes in payment of debts due estates, and' that having said funds in hand he refused to pay out the same according to law, upon demand. Whereupon, the Ordinary cited and required the administrator to appear before the Court, and settle with the guardian of the minor heirs, the amount due from him as administrator. At a subsequent term of the Court, the administrator appeared and filed his answer under oath, stating that he did receive the Confederate money after the passage of the Act. At the next term, the guardian appeared, and by plea denied [646] the correctness of the showing made by the administrator, and also controverted the correctness of other items in the return. ■ And at a subsequent term, the Court, having heard the evidence introduced on the trial, adjudged that the return was incorrect, and ordered that the administrator be required to make, immediately, another return on said estate, including in said return good currency, instead of the Confederate currency. In obedience to this order of the Court, the administrator afterwards made another return, in which he included the same item of loss by Confederate currency, etc. But he had entered no appeal from the judgment of the Court rendered against him on the hearing. To this last return, the guardian pleaded the judgment of the Court, disallowing the item in the first return, which related to the Confederate currency, in bar, as the judgment of a Court of competent jurisdiction upon the very point in issue. The case went by appeal to the Superior Court, and on the trial the Judge charged the jury, in substance, that they Avere to pay no attention to that judgment. The jury found for the administrator, and the guardian brings the case to this Court. Section 2488 of the Code, directs that the Ordinary shall carefully examine the return and vouchers of the administrator, and if found correct and no objection be filed in thirty days from the time it is filed in office, he shall alloAV the same, etc. The return thus allowed and recorded (that is allowed Avithout- objection) shall be prima facie evidence in favor of the administrator of its correctness. But this case does not fall Avithin that rule. This Ayas a proceeding under section 2472 of the Code, making objection to the return within the thirty days. That section declares, that whenever the Ordinary knows, or is informed, by any person having an interest in the estate, that the administrator wastes, or in any manner mismanages the estate, or that he or his securities are likely to become insolvent, or that he refuses or fails to make returns as required by law, or that, for any reason, he is unfit for the trust reposed in him, he shall cite such administrator to answer to such charge, at some regular term of the Court, and upon the hearing, the Ordinary may, in his [647] discretion, revoke the letters of administration, or require additional security, or pqss such other order as, in his judgment, is expedient under the circumstances of each case. Here the charge was, that the administrator had not made his return “ as required by law,’5 that is, that he had not made a correct return, but had credited himself with the Confederate money which he had, as it was alleged, no right to receive, when he took it in payment of the debts of the estate. And he was cited to appear and answer this charge. The statute gives the Court of Ordinary jurisdiction and authority, to hear and decide the point in issue in just such a case, and its judgment when rendered, becomes final and conclusive on the point in issue, if no appeal is entered. This view of the case is strengthened by reference to section 3553 of the Code, which declares that an appeal lies to the Superior Court from any decision made by the Court of Ordinary, except an order appointing a temporary administrator : Provided, that whenever an appeal shall be taken from a decision of the Ordinary made under section 2472 of this Code, such appeal shall not operate as a supersedeas, unless the executor or administrator shall first give a good and sufficient bond, etc. This shows conclusively that the law contemplates an appeal from a decision made in a proceeding under this very section of the Code! It follows, therefore, that the parties to such a proceeding are bound by the judgment rendered, whether it is right or wrong, if they fail to enter an appeal within the time allowed by law, and that judgment is conclusive, and may be pleaded in bar of any subsequent proceeding, intended to controvert the point in issue at the former hearing and covered by the former judgment. The record as it comes up to this Court in this case, is very much tangled, and there is confusion as to dates. But as we understand it, this was the only point in the case. Indeed it was so admitted by the counsel in the argument. Judgment reversed.