Ransom v. Quarles

COLLIER, C. J. In Rowdon v. Young, adm’r, 12 Ala. Rep. 234, the question wqs whether the filing of the copy of a note which evidenced a claim against the insolvent estate of the defendant’s intestate, was a compliance with the statute, and- authorised the production of the original after exception was taken. It was said by the court, that a it is perfectly certain, that the note or bill single is not the debt, but merely furnishes proof of it, and that the destruction of the evidence would not extinguish the liabilily to pay.. We have seen that the affidavit which the act requires may be made after an objection is taken for the want of it, and why should not other proof of the claim be admitted in the same manner 1 The copy of the bill single- ivith the affidavit is quite as explicit as •the most formal declaration; and where an action is instituted in the ordinary mode, the plaintiff need not file the evidence of his demand,, until called for' by the defendant, or it is required to, entitle him to a verdict or judgment.. Why should not the same indulgence b.e tolerated in a proceeding such as that now before us ? Besides, does not the- statute' in directing pleading, to be made up, and an issue tried, contemplate the introduction of other proof by either party (where it is necessary),' than the claim as. filed ?” In Rutherford’s adm’r v. The Br. Bank at Mobile, 14 Ala. Rep. 92, this court was of opinion that it wais not necessary to filea note' or bond against an insolvent estate in the office of.the clerk of the Orphans’ Court,, but the statute was sufficiently complied with, by .filing a copy or substantial statement of the-claim:. Further, if the claim was left with the clerk within the time prescribed for the purpose of having it filed, the omission of the clerk to register it- with others of a similar character could not prejudice the creditor. If the principle of the cases cited is to1 be followed, it is perfectly certain that it was not necessary for the defendant in error to file a transcript of the record and judgment in the* cause- which he insisted showed that he was a creditor of the-intestate’s estate. A substantial recital of the amount of the439 judgment, the time when it was recovered, &c., was quite sufficient to give to the administrator all the information that was necessary, unless be proposed to make defence against the claim, in that event he could file exceptions and call for an authenticated transcript. In fact it would be the duty of the Orphans’ Court, mero motuT to. require the production of legal evidence of a claim in such cases, where a mere memorandum or copy has been filed. The certificate of the clerk of the court in which the judgment was rendered, reciting the essential facts, is altogether as regular and effectual, as -if they were embodied in a statement made by the creditor himself. The discrepancy between the certificate of the clerk, and the transcript produced, is not a fatal objection to. the allowance of the claim. There is no contradiction, except as tolhe amount of the judgment; the parties, court by which, and time when it was rendered, are all correctly stated, so that if it was necessary, the creditor might substitute another certificate or statement of his demand- in conformity to the transcript. There would certainly be no stronger objection to the allowance of such an amendment than applies to- a defective writ, declaration, or other pleading. True, the decree professes to allow to' the defendant in error the full amount of the claim stated in the certificate with $73 70 and interest on these sums, yet the amount of the judgment including the costs with interest at the time the decree was rendered by the Orphans’ Court, distributing the assets between the creditors, exceeded the sum estimated as the amount of the claim. Now although the court may have pro-. ' ceeded upon a hypothesis prejudicial to the estate of the intestate, yet as no injury resulted in fact, the error was merely speculative and does not warrant a reversal of the decree. It is insisted that as the claim filed, did not indicate that the defendant in error sought to recover the costs which were taxed on the judgment recited in the certificate of the clerk, the Orphans’ Court could not take them into the account and add them to the damages recovered, so- as to swell the amount of the claim. The costs were merely consequential, and the certificate is sufficiently comprehensivé to show that the demand was for whatever the judgment entitled the creditor to collect by execution. If necessary,, it was clearly competent [440] for him to have amended his claim as exhibited, so as to embrace the costs eo nomine. Although the Orphans’ Court may have refused to credit the administrator with the amount of the costs, it was clearly competent to have allowed them as a part of the claim of the defendant in error. There may have been reasons which justified their rejection in the one ease that do not apply to the other, or if the court made an incorrect decision either with or against the consent of the administrator, the creditor was not bound to acquiesce, and the court itself might have decided correctly for the creditor. It is enough however upon this point, that the record does not show an available error. What we have already said, furnishes an answer to the questions attempted to be raised by the form of the issue. Without stopping to enquire whether, as the Judge was by consent of parties substituted for the jury, his decision upon the issue should not be regarded both as a verdict and judgment, we are satisfied upon the facts and the law as we have stated it, the result is correct. It remains but to add that the decree of the Orphans’ Court must be affirmed.