Shorter v. Urquhart

GOLDTH WAITE, C. J. The writ in the present case was sued out against Elizabeth Shorter and George- Har-graves, as the administrators of James H. Shorter, was executed on Elizabeth Shorter, and returned not found as to the other defendant, as to whom the suit was discontinued in the declaration, on the ground that he had not been served with 'process, and resided in the State of Georgia. We have repeatedly held, that, where one administrator was out of the jurisdiction of the court, and not amenable to its process, he need not be joined in the writ (Williams v. Sims, 8 Port. 579; Owen v. Brown, 2 Ala. 127; English v. Brown, 9 Ala. 504); and, in the last case cited, we held, that the discontinuance as to one on whom service was not effected, on the ground of non-residence, was the same, in effect, as if the writ had not been sued out against him. Again, in Walker v. Cuthbert, [366] 10 Ala. 213, we held, that, ‘ although a suit was improperly discontinued as to one defendant, it would not avail another, who appeared without objection, and defended the suit. Here no plea was interposed, which would present the question of fact, nor was the objection taken upon the evidence. This being the case, the marginal entry of the clerk, in naming a party who was not before the court, has no effect whatever, it being nothing more than a clerical mistake, requiring no amendment, as it occurred only in the entry of a continuance. — Grayham v. Roberds, 7 Ala. 719; Del Barco v. Br. Bk. at Mobile, 12 Ala. 238; Savage v. Walshe, 26 Ala. 619. In relation to the exclusion of the transcript of the record from the court of ordinary of Muscogee county, Georgia, recognizing James H. Shorter as the administrator of Eli S. Shorter, we see no error. It may be conceded that, in case of the loss or destruction of a record, secondary evidence is admissible to establish it; but hero the foundation on which such evidence should be based, appears to us to be wanting. We cannot judicially know that the court of ordinary of Muscogee county, in Georgia, had authority to confer administration, or that these powers were vested in it solely. Indeed, we know nothing whatever as to its jurisdiction or powers; and, in the absence of all evidence as to these points —without any testimony showing the original action of the court in Georgia as to the grant of administration — to admit secondary evidence of such action, would be extending the rule further than is warranted either upon principle or authority. The same reasons which wo have advanced in support of the exclusion of the transcript referred to, operate to sustain the action of the court in the rejection 'of the affidavits. They were, at the most, nothing more than the admissions of the party, made under oath; and as the grant of administration is a judicial act, it could not bo proved in the mode proposed. — Morgan v. Patrick, 7 Ala. 185. In the charge given by the court, by which the jury were instructed that the plaintiff was entitled to recover if they believed that the slave sued for was the property of Eli S. Shorter at the time of his death, and that the defendant had [367] him in possession and employment at the commencement of the action, the plaintiff having been appointed administrator of Eli S. Shorter before that time, — there was error. The suit was against the defendant below in her representative capacity; the declaration charged a conversion by her intestate in his lifetime; and the effect of the charge was, that a recovery might be had against the administratrix, as such, for a conversion by her since his death. If this charge could be sustained, the consequence would be, that an estate would be liable in damages for a wrongful act committed after the death of the intestate. For the error we have noticed, the judgment must be reversed, and the cause remanded; and as the other questions presented on the present record may not arise'on another trial, we do not consider it necessary to decide them.