Spence v. Savery

LIGON, J. We esteem it wholly unnecessary to consider all the points presented in the assignments of error, and in the briefs of the counsel, inasmuch as we find it impracticable to sustain the judgment and decree .of the Probate Court of Talladega, on the record before us. It appears that Spence, as sheriff of Talladega county, was appointed administrator de bonis non of John O. Calhoun, deceased, of whom his predecessor in the office of sheriff (David A. Griffin) had been administrator virtute officii. The administrations of both Griffin and Spence, so long as the latter was sheriff, were strictly attached to the office of sheriff. It follows, as a consequence, that all orders, the tendency and object of which were to bring about a settlement of Spence’s accounts of his administration of Calhoun’s estate, while he [731] managed it under his appointment as administrator ex officio, should show that he was proceeded against in that character ; especially as, upon the expiration of his term of office, he procured letters of administration to be issued to him on the same estate in his individual capacity, and gave another bond, with other sureties, who were different from those whose names appear upon his bond as sheriff. In none of the orders of the court in this record, preliminary to the final decree against him, is it shown that he was required to settle his administration as sheriff. On the contrary, the form adopted by the Probate Court is such as would be only allowable in a proceeding against him on his administration as an individual. This being the case, it was clearly erroneous for the court below to render its final decree against him as administrator by virtue of his office, and on the return of the ji. fa. against him nulla Iona, to render the statutory judgment against his sureties on his bond as sheriff, and award execution thereupon. His sureties on his sheriff’s bond, had they been advised by the notice served upon their principal, or the publication made in the newspaper, that it was designed to charge him in his character of administrator by virtue of his office of sheriff, would have had the unquestionable right to appear on the statement of the account, and question its accuracy, inasmuch as the decree founded upon it would be conclusive against them. But they could claim no such right, in a proceeding against him the object of which was, to coerce a settlement of his accounts on his individual administration. It is insisted, however, that this objection to the proceedings should not be allowed to be taken for the first time in this court, and the case of Croft v. Ferrell et al., 21 Ala. 351, is relied upon as conclusive upon this point. The cases are unlike, on the very point which controlled the decision in the case cited. In that case, the guardian was in court when the account was stated, acting through his counsel, and excepting to the ruling of the court in some respects ; but, having failed to except to the ruling of the court on the question of notice, he was held to have waived it there, and this court refused to consider it when assigned for error here. In the present case, there was no appearance by the administrator, nor by any [732] person claiming to represent him, as counsel or otherwise, and the recitals of the decree show that it was rendered as on default of the administrator ; for it is stated, “ that the said Spence came not, but made default.” This, then, must be regarded as a decree, or judgment on default, and it needs no citation of authorities to establish that, in such cases, the defendant will not be considered to have waived the right to complain in the appellate court of any error or irregularity which may have occurred in the proceedings against him in the primary court. In such cases, the party complaining, or occupying the position of plaintiff, is bound, at his peril, to take such preliminary steps as will sustain the judgment of the court in his favor, or, in other words, to show a judgment legally and regularly obtained, when it is sought to be reviewed in a direct proceeding, such as this is. As we have before said, the preliminary steps in this case are all taken against Solomon Spence, administrator de bonis non of John C. Calhoun, deceased, without, in any manner, connecting his administration with his office of sheriff. He was, as the record discloses, administrator- in his own right, as well as by virtue of his office of sheriff, and consequently these preliminary proceedings must be held to have been had against him on his individual administration ; and whether they be regular or otherwise, they ysdll not justify the decree found in the record, which is against “ Solomon Spence, late sheriff of said county, (Talladega,) and by virtue of his office as such sheriff administrator de bonis non of the estate of John C. Calhoun, deceased.” As the record shows that Spence, in July, 1842, reported the estate of Calhoun to be insolvent, and the court, accepting the report, declared it such by an order of that date, it may be supposed that the conclusion we have attained in this case conflicts with the decisions of this court in the cases of Watts et al. v. Gayle & Bower, 20 Ala. 817, and Clarke v. West et al., 5 ib. 117. An examination of all these cases, however, will show that there is not even a seeming inconsistency. The facts and the parties litigant in the cases cited, are essentially different from those in the case at bar, and the rules of law and practice which apply to and control them are also different. In the cases cited, the judgment or decree [733] of the Orphans’ Court was obtained under the rules which apply to and govern the settlement of insolvent estates, and are provided by law for that purpose ; and the questions presented arose between the creditors of the estate and the sureties of the administrator. Every order taken to effect the settlement, in each case, shows that the estate was treated as insolvent; and this court held, that the administrator of an estate, regularly declared insolvent, and settled as such, could not complain of want of notice of the time of settlement, because he was the actor in the matter, and considered to be always in court, and consequently cognizant of all orders taken in the proceeding to effect a settlement; and as he could not avail himself of such want of notice, neither could his sureties. But in this case, although the record shows a report of insolvency, and an order declaring the estate to be so, in the year 1842, yet there is not another order in it, up to the rendition of the decree complained of, in 1852, which treats it as an insolvent estate, and the judgment sought to be reviewed in this court is in favor of Savery, not as a creditor, but as administrator de bonis non of John C. Calhoun, deceased. It would, therefore, be manifestly improper, to apply to this case the rules which govern in cases of insolvent estates declared and settled as such. Our opinion is, that the decree must be reversed, and the cause remanded. Chilton, C. J., not sitting.