Campbell v. Hughes

• Decision Date: 21 November 1907
• Citation: 47 So. 45,155 Ala. 591
• Parties: CAMPBELL ET AL. v. HUGHES.
• Court: Alabama Supreme Court

47 So. 45

155 Ala. 591

CAMPBELL ET AL. v. HUGHES.

Supreme Court of Alabama

November 21, 1907

Rehearing Denied June 18, 1908.

Appeal from Chancery Court, Madison County; W. H. Simpson Chancellor.

Bill by James Hughes, administrator, against Jennie L. Campbell and others to foreclose a mortgage. From a decree for complainant, respondents appeal. Reversed and rendered.

Simpson Anderson, and McClellan, JJ., dissenting.

Cooper & Foster, for appellants.

Walker & Spraggins, for appellee.

DENSON J.

This is a bill filed by a foreign administrator to foreclose a mortgage on a lot in the city of Huntsville, Ala. The mortgage was executed to the complainant's intestate by Allen R. and Jennie L. Campbell, who were at the time husband and wife. Allen R. died before the bill was filed, and the respondents to the bill are Jennie L.

Campbell and two minor children of Allen R., as his only heirs at law. It is the wellsettled rule, according to the common law, both in England and the United States, that letters of administration have no extraterritorial force. Consequently a foreign administrator can only maintain suits and collect assets of the deceased in another jurisdiction in virtue of a legislative permission--ex comitate legis. Harrison v Mahorner, 14 Ala. 829; Jefferson v. Beall, 117 Ala. 436, 23 So. 44, 67 Am. St. Rep. 177; Johnston v. McKinnon, 129 Ala. 223, 29 So. 696. In many, if not all, of the states there are statutory provisions authorizing the maintenance of suits and the collection of assets by foreign executors and administrators.

Section 359 of our Civil Code of 1896 provides that such an executor or administrator "may maintain suits and recover or receive property in this state--(1) by recording, at any time before judgment, or the receipt of the property, a copy of his letters, duly authenticated according to the laws of the United States in the office of the judge of probate of the county in which such suit is brought or property received; (2) by giving bond," etc. Section 361 of the Code provides that: "Before a judgment is rendered in a suit brought by such foreign executor or administrator, the plaintiff must prove that he has complied in all respects with the provisions of section 359, and failing to do so, he cannot recover." It has been held that this proof need not be made, in the absence of a plea of "ne unques administrator." Berlin v. Sheffield, 124 Ala. 322, 26 So. 933; Johnson v. Kyser, 127 Ala. 309, 27 So. 784. While the denials of the answers may not amount to a technical plea "ne unques," they must be held to operate to require proof of the filing of the copy, duly authenticated, before judgment. Harris v. Moore, 72 Ala. 505; Noonan v. Bradley, 9 Wall. (U. S.) 394, 19 L.Ed. 757.

The proof shows that a copy of the letters was recorded in the office of the judge of probate on, to wit, the 13th day of October, 1904, before the bill was filed; but manifestly this copy is not authenticated according to the laws of the United States, and the complainant can take nothing by that proof. Rev. St.§ 905 (U. S. Comp. St. 1901, p. 677). The complainant seems to have realized the fact that the copy would avail nothing, for he obtained a copy of his letters, duly authenticated, and introduced it in evidence. This copy was certified on the 23d day of September, 1905. In respect to the submission by the complainant on this copy, the note of submission recites that: "Complainant submits on the following testimony: * * * Certified copy of letters of administration to James Hughes, deceased, by the Surrogate Court of the county of New York and state of New York, filed September 26, 1905, and recorded in Record Book 42, page 444, of the records of said probate court." The probate court referred to is that of Madison county, as is made to appear by what precedes the foregoing in the note.

It is clear that the certificate attached to this copy conforms to the laws of the United States in such cases made and provided. Rev. St. § 905. But the statute requires that the copy shall be recorded, and it is argued and insisted for the appellant that the proof should show the recording of the copy and that the recording occurred before the filing of the bill. It has never been precisely determined by this court that the recording should take place before the commencement of suit; but it was said, in the case of Hatchett v. Berney, 65 Ala. 39: "The statute is permissive and prohibitory. * * * Though the statute does not, in words, express a prohibition of suits, or the voluntary delivery of property, in the absence of a compliance with the condition, yet such is its manifest spirit and intent. It prescribes the terms upon which he may exercise here the authority derived from a foreign jurisdiction; and to the extent to which there might be recognition of such authority, in the absence of compliance, there would be practical contravention of the legislative will."

We do not consider that this is an adjudication that the copy should be recorded before the suit is commenced. While we shall not refer specifically to the statutes of all the states on this subject, we will call attention to two, and to the construction that has been placed upon them by the appellate courts. In Wisconsin the statute authorizes suits by a foreign representative upon the filing of his original letters or a copy thereof in a county court. St. 1898, Wis. § 3267. The court there held that an omission to comply with the statute before commencement of suit was cured by filing the letters pendente lite. The decision goes on the theory that the omission is a mere disability to sue, not going to the right of action. Smith v. Peckham, 39 Wis. 414. In Minnesota the statute is to the effect that a foreign representative may bring an action, "provided that, before commencing" the action, he shall file an authenticated copy of his letters. The court held that, the authority of the representative to sue being statutory, he must commence the action on the terms the statute prescribes, and if commenced before filing the copy, and the objection is properly taken, it is fatal, and the defect cannot be cured after commencement of the action. Fogle v. Schaeffer, 23 Minn. 304. To the same effect is Karrick v. Pratt's Ex'rs, 4 G. Greene (Iowa) 144. The Minnesota case simply declares what the statute then under consideration in terms expressed--that the copy must be filed before the commencement of suit.

The sum of the cases construing similar statutes seems to be that the requirement of

the statute is merely to furnish evidence of the plaintiff's representative character, and may be complied with after the suit is instituted, unless the statute expressly provides that such letters or copies thereof shall be filed before commencing the suit. 18 Cyc. 1242; 8 Ency. Pl. & Pr. 705. Our statute, providing in terms that a foreign representative "may maintain suits * * * by recording, at any time before judgment, * * * a copy of his letters, duly authenticated," etc., seems to contemplate that the copy may be recorded after the commencement of the suit, and this gains force from the wording of section 361 of the Code, above set out. Giving the words of the statute (section 359) their plain, every-day, common-sense meaning, we conclude that it is not required that the copy should be recorded before commencement of the action, and that recording before judgment meets the statutory requirement. This, we feel sure, is what the lawmakers intended. Buecker v. Carr, 60 N. J. Eq. 300, 47 A. 34. So far all of the Justices concur.

The question then arises: Does the proof show that the copy certified on the 23d day of September, 1905, has been recorded? It is too apparent to admit of dispute that the order of the probate judge, of date October 13, 1904, and shown on page 39 of the record here, refers to the copy of the letters that was filed on the 13th of October, 1904 (which we have held not...