Copeland v. Loeb, 3 Div. 851

• Decision Date: 28 May 1959
• Docket Number: 3 Div. 851
• Citation: 269 Ala. 295,112 So.2d 475
• Parties: Albert W. COPELAND, as Administrator ad litem, v. H. B. LOEB.
• Court: Alabama Supreme Court

Page 475

112 So.2d 475

269 Ala. 295

Albert W. COPELAND, as Administrator ad litem, v. H. B. LOEB.

3 Div. 851.

Supreme Court of Alabama.

May 28, 1959.

Hill, Robison & Belser, Montgomery, for appellant.

Hill, Hill, Whiting, Harris & Pilcher, Montgomery, for appellee.

SIMPSON, Justice.

The facts giving rise to this case, as disclosed by the pleadings, are as follows: In 1950 and 1951 W. D. Lowry, Jr. and H. B. Loeb executed two promissory notes totaling $6,600 which were payable to Lowry's mother, Mrs. Lula Clyde Lowry. Mrs. Lowry died on February 27, 1953, at which time the notes were unpaid. Mrs. Lowry left a will naming her son, W. D. Lowry, Jr. as executor and making said Lowry a principal heir and legatee of her estate. On March 21, 1958 Lowry, as executor of the estate of Mrs. Lowry, filed the complaint in the instant case in the Circuit Court of Montgomery County seeking recovery on the aforesaid promissory notes and naming himself as party defendant along with the appellee, Loeb. Appellee filed a plea in abatement alleging that he was a resident of Escambia County and that plaintiff had wrongfully brought this suit in the county of his own residence and had wrongfully joined himself as party defendant in an effort to evade the venue requirements of Tit. 7, § 54, Alabama Code 1940. Thereafter Lowry filed an affidavit to the effect that Lowry, the party plaintiff, and Lowry, the party defendant, were one and the same person, but that plaintiff Lowry was suing in his capacity as executor of the estate of Lula Clyde Lowry, deceased. Based upon the affidavit, the trial court appointed appellant Copeland as administrator ad litem of the estate of Lula Clyde Lowry, deceased, and as substitute party plaintiff to represent the estate upon the hearing of this suit. Appellee then amended his plea in abatement to meet this new issue and appellant demurred. The trial court thereupon overruled the amended demurrer to the amended plea in abatement; appellant took a non-suit and has brought this appeal.

The single question presented for decision is whether or not Lowry, whose residence was made determinative of the venue of the action, is a bona fide defendant.

Section 54, Tit. 7, Alabama Code 1940 provides in part as follows:

'All actions on contracts, except as may be otherwise provided, must be brought in the county in which the defendant or one of the defendants resides * * *.'

Where there are several defendants and the residence of one is made determinative of the venue of the action, the complaint must state a cause of action against the said defendant; it must show that the resident defendant has an interest antagonistic to the plaintiff and the resident defendant must be a party against whom relief is sought. Ex parte Morton, 261 Ala. 581, 75 So.2d 500. The resident defendant must be a real and bona fide defendant whose interest in the result of the action is adverse to that of the plaintiff with respect to the cause of action against the other defendant. 56 Am.Jur., Venue, § 30; 92 C.J.S. Venue § 96.

It is a settled doctrine in this Court that when a debtor becomes executor of the estate of the creditor, his personal indebtedness to the estate is extinguished as a matter of law and is converted and transmuted for all practical purposes, from a chose in action into a chose in possession, and for which he is liable on final settlement of his administration. This rule obtains without regard to the solvency of the debtor so appointed or the duration of his administration. The fact that there is a dispute as to the existence of the indebtedness or the amount thereof does not oust the jurisdiction of the court in that one purpose of the settlement is to ascertain the assets for which the executor has become liable to account. The underlying reason supporting this rule is that the executor becomes both payor and payee; that is, the right to demand and the obligation to pay exist in the same person; the executor cannot sue himself and there is no process by which the executor can coerce a collection of himself. See Childress v. Childress, 3 Ala. 752; Purdom v. Tipton, 9 Ala. 914; Miller v. Irby's Adm'r, 63 Ala. 477; Wright v. Lang, 66 Ala. 389; Cook v. Cook, 69 Ala. 294; Arnold v. Arnold, 124 Ala. 550, 27 So. 465; Lindsey v. Lindsey, 229 Ala. 578, 158 So. 522; Faust v. Faust, 248 Ala. 660, 29 So.2d 133; Webb v. Webb, 250 Ala. 194, 33 So.2d 909; 8 A.L.R. 92.

The personal indebtedness of the executor to the testator-creditor whereby he might have otherwise been sued, was therefore extinguished. Thus the administrator ad litem could not maintain this action at law based upon Lowry's personal indebtedness. See Hodge v. Hodge, 90 Me. 505, 38 A. 535, 40 L.R.A. 33; Bassett v. Fidelity & Deposit Co., 184 Mass. 210, 68 N.E. 205; 21 Am.Jur., Executors & Administrators, § 194; 8 A.L.R. 92.

The administrator ad litem argues that inasmuch as he, rather than the executor is bringing the action, the reason for the rule (that an executor cannot sue himself) falls and the rule (that the debt is extinguished) should not be applied.

The only relief afforded an administrator ad litem against an executor where...