Burnett v. Nesmith

BRICKELL, C. J. It is contended by the appellants, that the order of the court of probate appointing Cannon as sheriff, administrator of the estate of M.ayfield, is void, because the record of the appointment does not disclose that there was no general administrator of the county, and no other fit person who would administer. The statute on which the argument is founded, is in these words: “In case there is no general administrator, and no other fit person will administer, the court may commit administration to the sheriff or coroner of the county.” — Code of 1876, §2363. The constitution of force when the administration in question was granted, conferred on the court of probate original, general and unlimited jurisdiction of the grant of letters tes [265] tamentary, and of administration, creating it, as to that matter, a court of general jurisdiction. Its sentences, therefore, as to the grant of administration, are, when collaterally assailed, protected by the presumption extended to the judgments and decrees of all courts of general jurisdiction. Whatever within the jurisdiction is done, will be presumed rightful, until the contrary is shown. Facts which must have been ascertained by the court to exist, and upon the existence of which the regularity of its action depends, will be conclusively presumed to have been ascertained, unless the record affirmatively discloses the contrary. — Ikelheimer v. Chapman, 32 Ala. 676; Gray v. Cruise, 36 Ala. 559; Coltart v. Allen, 40 Allen, 155; Russell v. Erwin, 41 Ala. 292. The grant of administration to Gannon can not be pronounced void. Nor can it be admitted that he or his sureties, after he had accepted and acted under the grant, obtaining possession of the assets, and converting them, can be heard to question the regularity and validity of the grant. — Thompson v. Bondurant, 15 Ala. 346; McWhorter v. McGehee, 1 Stew. 546; Sprowl v. Lawrence, 33 Ala. 674; Alston v. Alston, 34 Ala. 15; Williamson v. Wolf, 37 Ala. 298. It is next contended, the bond on which the action is founded is void, because it was taken by the probate judge of his own volition, in the absence of any statute expressly authorizing it, in a penalty greater than that which the court of county commissioners prescribed, and when the principal was acting as sheriff, under a valid statutory bond, sufficient in penalty to cover the default he has committed. The statute of force when the bond was executed, conferred on the judge of probate the authority to fix the penalty of the original official bond of the sheriff, not limiting the power in any respect, except that the penalty should not be less than five thousand dollars. — R. C. § 814. The grant of administration to Gannon, attached to his office of sheriff, and his official oath and bond, were a security for his faithful administration. — R. C. § 2010. The power to prescribe the penalty of the general official bond of the sheriff may be exhausted, when the bond is taken and approved, and there may not be in the probate judge any power subsequently to alter it.— Harris v. Bradford, 4 Ala. 214. And it is true there was no statute expressly conferring on the judge of probate, or the court of probate, authority to require of a sheriff an additional bond on the grant of an administration to him. Tet, if a faithful administration is to be secured, and the interests of creditors and next of kin are to be protected, there will often be a necessity for the exercise of such a power. The assets of a particular estate may, and often in fact, largely [266] exceed the penalty of the general, or original official bond, which then becomes inadequate security. In that event the statute requires that the probate judge shall notify the grand jury, if the circuit court is in session, or if it is not in session the court of county commissioners, and an additional bond may be required. — R. C. § 2033. The circuit court not being in session, notice was given the court of county commissioners by the probate judge, and the bond in suit was executed, in the penalty of fifty, instead of twenty thousand dollars as prescribed by the court. Whether this would have any influence on it as a statutory bond, at common law, was decided in Bagby v. Chandler, 9 Ala. 770. There, the existing statute required that a constable’s bond should be in the penalty of one thousand dollars, and it was taken in the penalty of two thousand dollars. The court said: “ In our judgment, this does not affect it as a statutory bond. We need not consider whether the party could be made liable beyond the statute penalty, considered as a bond under the statute. For that amount it is certainly good under the statute.” Now the statute, in express terms, declares the validity of official bonds, if the officer acts under them, is not affected, because they are not in the penalty, or payable, or with condition as prescribed by law. — Code of 1876, § 181. Before the enactment of the statute it was often decided that a statutory bond was not void because it varied from the form prescribed by the statute. So far as it conformed to the statute, it was valid; and if invalid for the residue, it was because it was violative of public policy.— Whitted v. Governor, 6 Port. 335; Whitsett v. Womack, 8 Ala. 466; Boring v. Williams, 17 Ala. 510 ; Walker v. Chapman, 22 Ala. 116. The judge of probate may not have had authority to increase the penalty of the bond beyond the sum the court of county commissioners had prescribed, but the want of authority does not render the bond invalid. When an additional bond is required from and executed by a sheriff, any person aggrieved by his subsequent default is entitled to sue on either the original or additional bond-Code of 1876, § 190. There is no error in the rulings of the circuit oourt, and its judgment is affirmed.