Rogers's Administrator v. Jones

BRICKELL, J. In the absence of statutory provisions authorizing it, a writ of error, or appeal, would not lie from a voluntary nonsuit, or a nonsuit taken by the plaintiff in consequence of adverse rulings of the court. Cain v. Byrd, 1 Stew. 189; Tate & Tate v. McCrary, 21 Ala. 499. The Code authorizes an appeal from a nonsuit suffered by the plaintiff because of adverse rulings of the court, and the reservation of the facts, point, or decision, by bill of exceptions, as in other eases. R. C. § 2759. The construction of this statute has been, that decisions upon the pleadings, which appear of record, and which are 355 not the subject of a bill of exceptions, are not revisable under it. Palmer v. Bice, 28 Ala. 430; Paulling v. Marshall, 47 Ala. 270. The bill of exceptions in this case recites, that the nonsuit was taken in consequence of the rulings of the circuit court in the rejection of certain evidence offered by the plaintiff. In this state of the record, we cannot consider the decision of the court on any question of pleading. We are confined in our inquiry to the propriety of the exclusion of the evidence. Vincent v. Rogers, 30 Ala. 471. 2. The averment of the complaint is, that Orme, the administrator, and the principal of the appellees, made in the court of chancery a final settlement of his administration of the estate of John R. Rogers, on which a decree was rendered for a specified sum in favor of appellant’s intestate. Among other pleas interposed, is the plea of nul tiel record. To support this averment of the complaint, the plaintiff offered in evidence the record of a decree of the court of chancery, rendered on a bill filed by his intestate in his life, under the statute (R. C. § 2274) authorizing any party injured, within two years after tlje final settlement of an administration in the court of probate, by bill in chancery to correct any error of law or fact, occurring in such settlement, without fault or neglect on his part. This record, on objection, the court refused to admit as evidence. A decree of the court of chancery is essential to the maintenance of this action. No action at law on the bond of an executor or administrator can be sustained, until there has been a judgment of a court of competent jurisdiction, fixing his liability. The decree of a court of chancery, ascertaining his liability, will authorize an action on the bond. In pleading, the general rule, especially applicable to records, is, that no allegation, descriptive of the identity of that which is legally essential to the claim or charge, can ever be rejected. 1 Green. Ev. § 56. The decree, as we have said, is essential to the maintenance of the action. The description of that decree in the pleading is, that it was rendered on a final settlement made by the administrator in the court of chancery. The import of this description is a settlement in which the administrator was the actor; and of that settlement, a settlement in the court of probate is not an indispensable element. Indeed, there could not have been a final settlement in the court of probate, consistently with the decree in chancery described in the pleading. The decree offered in evidence was rendered on a bill filed against the administrator. He was not the actor, but was proceeded against. To the validity of that decree a final settlement made by the administrator in the court of probate was indispensable. It is an error in a final settlement in the court of probate only, that the court of chancery under the statute 356 can correct. An error in a partial or annual settlement would be capable of correction on tbe final settlement in the court of probate. The decree rendered in chancery does not vacate or annul the settlement in the court of probate. It does not open and unravel the accounts stated and settled in that court. It simply corrects specified errors intervening in that settlement. To the identity of the decree, described in the complaint, a final settlement in the court of chancery, in which the administrator was the actor, was indispensable. A final settlement in the court of probate was not a fact necessary to the decree of the court. Between the record described in the complaint, and that offered in evidence, there was a palpable variance, and the circuit court did not err in its rejection. The judgment is affirmed.