Christopher v. Stewart

• Decision Date: 24 April 1902
• Citation: 133 Ala. 348,32 So. 11
• Parties: CHRISTOPHER v. STEWART.
• Court: Alabama Supreme Court

32 So. 11

133 Ala. 348

CHRISTOPHER v. STEWART.

Supreme Court of Alabama

April 24, 1902

Appeal from probate court, Etowah county; J. H. Lovejoy, Judge.

Petition by R. L. Christopher, as guardian, etc., against A. H Stewart. Decree dismissing the petition, and petitioner appeals. In the supreme court petitioner moved for a mandamus directed to the court below, requiring him to entertain and pass on the matter presented by the petitioner, in the event the decree appealed from would not support an appeal. Appeal dismissed, and motion for mandamus denied.

On August 14, 1900, R. L. Christopher, as guardian of Viva and Estella Stewart, who were the sole heirs and distributees of J. S. Stewart, deceased, filed a petition, addressed to the judge of probate of Etowah county, in which he averred that said J. S. Stewart died in Etowah county on February 14 1892; that letters of administration were granted upon his estate on May 12, 1892; that on November 3, 1892, said estate was declared insolvent, and on December 18, 1893, the administrator of said insolvent estate was appointed and entered upon the discharge of his duties; that the administrator of said insolvent estate has never made any partial settlement of said estate, and that no order, decree or action had been taken in said insolvent estate from December 18, 1893, up to the time of filing the petition that said estate consists of personal and real estate; that many claims by alleged creditors were filed against said estate after the decree of insolvency; that these claims consisted of open accounts, stated accounts, notes, and judgments, but none of them were ever allowed by the court and they are now barred by the statute or limitations of three and six years. It was further averred in the petition as follows: "That petitioner files objections to said accounts, which objections have accrued since the filing of said claims, which accounts and objections are hereto attached, and marked 'Exhibit A,' and prays that said exhibit be made a part of this petition; that said objections are such as have accrued after the 12 months allowed for filing objections to such claim under section 313, Code 1896 (section 2245, Code 1886)." The prayer of the petition was that, after due notice issued to each claimant, the court state an issue to be made up between each of said claimants and the petitioner to try the correctness of said claim, and on final hearing that said claims be stricken from the file. To each of the claims set out in Exhibit A to the petition the petitioner filed several grounds of objection. Most of these grounds were that the respective claims were barred by the statute of nonclaims or by the statute of limitations of three and six years. To some of the claims the objection was interposed that they had never been presented to the administrator or filed in the probate court within nine months after the decree of insolvency. In many of the objections to the claims it was stated that "said objection has accrued since said claim was filed." The creditors set forth in said petition separately moved the court to strike said petition and the objection from the file, upon the following grounds: "(1) The petition shows on its face that the objections to said claims come too late. (2) The petition shows on its face that the estate was declared insolvent on November 3, 1893, and the objections were filed to the claims August 14, 1900. (3) The petition shows on its face that the objections to the claim were not made in twelve months after declaration of insolvency, and that said objections did not accrue after twelve months allowed by law for filing objections to said claims. (4) The statute of limitations is no defense to claims against insolvent estates unless raised by objections filed within time allowed by law. (5) The statute of nonclaim is no defense to claims filed against insolvent estates unless raised by objections thereto within time allowed by law. (6) It does not negative the fact that prior to declaration of insolvency the claims had been duly filed in office of judge of probate, as required by section 133 of Code 1896." Upon the submission of this motion, the court rendered a decree sustaining the motion, and struck the petition and objection from the file. From this decree the petitioner appeals, and assigns the rendition thereof as error. In this court the appellant...