Erwin v. McGuire

B. F. SAFFOLD, J. The issues presented arose on the trial of a suit by the appellees against the appellants, after the commencement of which the estate represented by the defendants was declared insolvent. A copy of the claim, verified by the attorney of the plaintiffs, was delivered by him to the clerk of the probate judge within the required time. The attorney testified in this case that, though to the best of his recollection the affidavit was in the prescribed form, he derived his information of the correctness of the demand from others, and did not know it to be correct himself. The errors alleged are : 1st. The instruction to the jury that the plaintiffs could not recover unless the note sued on, or a copy thereof, properly verified, was filed in the probate court within nine months after the declaration of the insolvency. But such a copy, with an affidavit made by another than the plaintiffs, whether he had personal 'knowledge of the correctness of the claim or not, left with the clerk of the probate judge, would be a sufficient filing. 2d. The refusal to charge, that unless the note, or a copy of it, accompanied by an affidavit of the plaintiffs, or some one who knew of the correctness- of the claim, was filed in the probate court in proper time, the verdict must be for the defendants. A copy of a claim against an insolvent estate, properly verified, delivered to the clerk of the probate judge, is a sufficient filing under section 2196 of the Revised Code.— Flinn, Adm’r, v. Shackleford, 42 Ala. 202. [505] If the allowance of the claim had been contested in the probate court, the evidence of its proper verification, as given in this case, would have caused its rejection. A just and subsisting demand must be shown by legal evidence. Lay v. Clark's Adm’r, 30 Ala. 409. In Murdock v. Rousseau's Adm’r, 32 Ala. 611, it was held that a claim on which a suit is pending, when the debtor’s estate is declared insolvent, must be filed like other claims, within nine months after the declaration of insolvency. The decision was based on the supposed imperative and comprehensive terms of section 2196 of the Eevised Code. Walker, Justice, in a dissenting opinion, maintained the contrary as decided in McDougald’s Adm’r v. Dawson’s Ex'r, 30 Ala. 553, by arguments deemed by us as conclusive. He and Judge Stone, in both cases, held that the failure to file the claim was not a defense to the suit in the circuit court. But the latter maintained in the first cited case, that “ if the creditor fail to file his claim in the probate court, the settlement may be had without any reference to it, and such creditor is left to other sources for its payment, should there be such sources.” There can not be any other source, because all the property of the estate is vested by law in the administrator de bonis non, immediately upon his appointment. — Eev. Code, 2195. Besides, he can have no execution on his judgment, and it must be certified to the probate court. — Eev. Code, 2209. The proceedings before the probate court in respect to the allowance of a claim against an insolvent estate' is essentially a suit. Its rejection in a contest, in which the parties were represented, would be conclusive upon the plaintiff, notwithstanding the pendency of a suit upon the claim in the circuit court at the time of the decree of insolvency. — McDougald's Adm’r v. Rutherford, 30 Ala. 245. The cause commenced in the circuit court is permitted to proceed to judgment. — Eev. Code, 2208. The judgment of either court would be under competent jurisdiction ; one could not nullify or give additional validity to the other. The pendency of the first suit could be pleaded in abatement of the second, and the first judgment rendered would [506] be a bar to the other action. The reason of the law requiring the filing and verification, which is notice to the administrator and proof of indebtness, fails. We decide that it is not necessary to file in the probate court a claim on which suit was commenced prior to the declaration of insolvency of the debtor’s estate. The judgment is affirmed.