Isom v. Heirs of McGehee

Taebell, J. : S. H. MeGehee and others, heirs of Meredith MeGehee, deceased, in the chancery court of Lafayette county, sought by scire facias to revive a decree of the probate court of that county for the payment of money and for execution against Thomas D. Isom, administrator of the estate of said Meredith MeGehee, deceased. The decree sought to be revived was rendered in 1867, and recites that — 716 — personal service of citations having been made upon the resident parties interested, and publication had as to the non-residents, thereupon came on to be heard the final account and settlement of said Thos. D. Isom, administrator aforesaid. The account having been stated and settled, the decree concludes as follows : “That there is due from said administrator, to the children of Charlotte McCan, the sum $1,333 29, to be equally divided among them, and that there is due from said administrator to the children of James McGehee, the sum of $833 29, to be equally divided among them. It is ordered, adjudged and decreed by the court, that said administrator do pay the said last two sums of money to said parties, to whom it is due as aforesaid, and that said administrator be discharged from his said administration.’ ’ Scire facias was issued and served in October, 1870, returnable to the then next term of the chancery court of Lafayette county. The defendant therein demurred, averring the following causes: that the records of the probate court do not show a judgment or a decree awarding an execution. The decree of the probate court cannot be revived by scire facias ; the remedy of complainant is at law and not in chancery. The demurrer was overruled, with leave to defendant to answer, from which decree an appeal was prayed and granted. In this court the only error assigned is the action of the court in overruling the demurrer. It is true that the writ of scire facias is unknown in chancery practice; but it must be observed that our chancery court, as now organized, possesses a double jurisdiction, one based upon the ancient and honored landmarks of equity, and the other embracing the duties lately exercised by the court of probates. Const, of 1868,1869, art. 6, § 16 ; Const, of 1832, §§ 16,18. The chancery court law of 1870, § 25, provides “that all causes and proceedings remaining undisposed of in the chancery, or court of probates of each county shall be transferred to the chancery court of the county, — 717 — which court shall proceed to hear aud determine the same according to the principles of law and equity applicable thereto.” This statute not only transfers the undetermined business in the court of probate remaining at the time of the change of our judicial system in 1870, to be concluded in the chancery courts newly organized, but it transferred also all the agencies employed by the former courts in the prosecution of causes therein ; among which was the writ of scire facias for the revival and renewal of judgments. Code of 1857, p. 490, art. 73; 27 Miss. 786. In such case the scire facias is but the continuation of the original proceeding. Bowen v. Bonner, supra, p. 10. Of the several classes of cases wherein scire facias is the proper remedy, the one of which there is no question, is the non-issuance of an execution for a year and a day on a judgment in a court of law. 3 Smedes & Marsh. 1. To this extent the proceeding in this case was regular and appropriate. To the objection that scire facias is unauthorized in chancery, we remark that, upon general principles, the objection would be well taken; but, in our opinion, it is unobjectionable, and, in fact, is authorized in the conclusion of cases originating in the late court of probates. The writ is simple, precisely adopted to the circumstances ; it states the judgment or decree sought to be revived, with a prayer for revival and for execution, and notice to the party against whom it issues, to show cause, on a day named, why its prayer should not be granted ; it fully meets the exigencies of the case, and does so at once in a precise, plain and practical mode, suited to the facts and to the simplicity of our practice in probate cases. We shall not be understood as engrafting the writ of scire facias upon our equity jurisprudence, or of introducing it into our chancery courts as recently created, beyond the precise cases herein indicated. Keeping in view, therefore, the distinction between chancery and probate jurisdictions lately entertained, and the former remains intact. To the objection that the decree of the probate court does — 718 — not award an execution, it is only necessary to say that this point presents a question no longer an open one in this state, even if ever tenable, which is doubtful. Tonena & Snyder v. Kerr, 27 Miss. 786; Scott v. Porter, 44 ib. 364. And besides, the Code, 431, art. 31, furnishes an absolute answer to this point. The court in Tonena & Snyder v. Kerr, says: “It was objected in the court below, both by demurrer and plea to the scire facias, that the decree was not final, and could not therefore be revived. The court overruled this objection and made an order reviving the decree against the appellants, as administrators of said Carbry, which order, in our opinion, is entirely free from objection. The decree was made upon Carbry’s own account, and all parties were at his instance brought before the court, to show cause why it should not be made just as it was made. It was intended to ascertain the amount of his indebtedness to the distributees of Kerr’s estate ; this, the decree, in the clearest manner, does; and it goes further and orders the sum so ascertained to be paid to said distributees. It is in every respect a decree which might have been enforced, either by execution or by attachment, which is the best test of the finality of the decree.” The case referred to, as in the one at bar, was one of final settlement of the administrator’s account, at his own request, all the parties interested being brought before the court by citation, in that case also, as in the one at bar, the decree did not in words award an execution, but did direct the payment of a sum certain in money. The language of the decrees in the two cases, the one quoted and the one at bar, is almost identical, the only difference in the two cases being the death of the executor in the former, against whom the decree sought to be revived was made. Although the case at bar is thus substantially disposed of, it may be well to refer briefly to some of the points in the argument of counsel. 1. Contrary to such argument, the proceedings in this instance, first undertaken in the probate court, were undis — 719 — posed of at the date of the adoption of the new constitution and the passage of the chancery court law of 1870, as the administration was incomplete and unfinished, and the trust continued until the payment of the money, in the hands of the administrator, to those entitled thereto, in obedience to the orders of the court. The jurisdiction of the probate court did not terminate with the final settlement, because the administrator still held funds in his hands for distribution, which the court decreed him to pay. Until payment, the administration, the trust, and the jurisdiction of the probate court remained. Dunson v. Dunson, 33 Miss. 560; Henderson v. Winchester, 31 ib. 290; Davis v. Cheeves, 32 ib. 318; Smith v. Hurd, 7 How. 188. Lowry v. McMillan, 35 Miss. 147, does not sustain the views of counsel. In that case the administrator had paid over all the assets in his hands to the persons adjudged by the court to be entitled to the same, and, having acted in good faith, he was protected by the judgment of the court. The question was upon the effect of the judgment of the court in protecting the administrator. The administration was closed, in fact, by the disposition of the entire estate according to the decree of the court, leaving no assets in the hands of the administrator, nor any part of the trust undetermined. It was held, in such case, after final settlement and discharge, that the administrator was no longer subject to the jurisdiction of the probate court. But that is not the case at bar. Neither does Dowd v. Morgan, 23 Miss. 587, authorize the theory of counsel based thereupon. In that case, letters of guardianship to one had been revoked and granted to another. The prior guardian was cited to settle his guardian accounts, which was done. A citation was then issued to the newly appointed guardian to appear and show cause why the account of the former guardian should not be allowed. Although he failed to appear, the court examined the account, and found a large balance due the minor. Upon its own motion, the court rendered judgment for this — 720 — balance against the former, in favor of the newly appointed guardian. It will be observed that this proceeding was not upon the petition or solicitation of either guardian, but by citation against both, and particularly that the proceeding was not instituted on the application of the acting guardian to determine the amount due to or by his ward, but that it was undertaken by the court to settle the account of the former guardian, when, also, upon its own motion, the court awarded the judgment already stated. On error, the court said: “If this judgment had been rendered upon a proper proceeding by the acting guardians, it would, perhaps, have been right and proper; but there is no law which will authorize a probate court to render a judgment in favor of a party who does not ask its assistance. Courts of justice can only grant relief or give judgment in favor of those who invoke their aid. In this case, it appears that no judgment was asked by the guardian, and, consequently, none should have been rendered in his favor.” This language can be properly interpreted only by reference to the precise case determined. In the case at bar, the decree was awarded upon the petition of the administrator for that very purpose, and is, therefore, unlike the case of Dowd v. Morgan. The decree in this instance was not only upon the petition of the party thereto, but in pursuance of articles 106, 107, Code of 1857, p. 451, which directly authorize it, and by which the practice in such cases is governed. Under this statute a petition by the distributees for a decree in their favor is unnecessary, the court being empowered by the statute quoted to make the decree on the application of the administrator for final settlement. A decree for distribution may, however, be obtained by distributees on their own petition under art. 118, ‘Code of 1857, p. 454. The rule in Dowd v. Morgan, therefore, has no application. In the case at bar the appellees were parties litigant under art. 31, Code, 431, made so by the appellant on his own petition. With reference to the argument that the remedy of the — 721 — appellees was at law, the foregoing affords a sufficient answer, and it requires only to be said, that where there is such ample remedy of a direct character, in a case like this as herein indicated, it would be unjust to drive a party to the circuity and delay of an action at law, though clearly open to him. The decree is affirmed with leave* to the appellant to file his answer to the scire facias within forty days from this date.