Jackson v. Scanland

• Decision Date: 28 May 1888
• Court: Mississippi Supreme Court
• Parties: W. L. JACKSON v. ROBERT SCANLAND, ADMINISTRATOR

4 So. 552

65 Miss. 481

W. L. JACKSON v. ROBERT SCANLAND, ADMINISTRATOR

Supreme Court of Mississippi

May 28, 1888

APPEAL from the Circuit Court of Adams County, T. OTIS BAKER, ESQ. Special Judge, by agreement of the parties, Hon. Ralph North Judge, having been of counsel in the case.

On April 12, 1867, Mary M. Morrison recovered a judgment for $ 16,507.33 in the Circuit Court of Adams County, against W. L Jackson. This judgment was duly revived in April, 1874; and on the 14th of May, 1874, and the 22d of December, 1880 respectively, execution was issued thereon. Mary M. Morrison resided in Arkansas and died there in December, 1882, leaving a will, but without naming an executor. On December 7, 1887 Robert Scanland applied for and obtained in the proper County in the State of Arkansas letters of administration, with the will annexed, on the estate of Mary M. Morrison, deceased.

On Dec. 12, 1887, Robert Scanland filed in the office of the Circuit Clerk of Adams County his affidavit, setting forth the death of Mary M. Morrison, and his appointment as administrator, cum testamento annexo, of her estate in the State of Arkansas, and also a certified copy of the will of the deceased as probated in Arkansas, and a certified copy of the letters of administration granted by the court there to Scanland; and the same day an execution was issued on the judgment of the decedent, Mary M. Morrison, against W. L. Jackson, in the name of the deceased plaintiff, but "for the use and at the instance of her administrator with the will annexed, Robert Scanland," as endorsed on the writ by the clerk of the court.

On Dec. 22, 1887, Scanland presented certain papers to the Chancery Clerk of Adams County, at his residence, which purported to comply with the provisions of Sec. 2091, Code of 1880. These papers were on that day at his residence, marked and filed by the clerk, but were not put in his office until the day following.

On Dec. 30, 1887, the defendant moved in the Circuit Court to quash the execution issued on Dec. 12, 1887, and then in the hands of the sheriff. The motion was sustained and the execution quashed.

On the 1st of March, 1888, Scanland filed in the office of the Chancery clerk of Adams County a certified copy of the record of his appointment and qualification as administrator of the estate of Mary M. Morrison, deceased, in the State of Arkansas, and the certificate of the judge of the court where his administration was pending that he is accountable to such court for all that he may receive in satisfaction of the judgment against W. L. Jackson and in favor of the decedent, Mary M. Morrison, in Adams County of this State. And on the 2d of March, 1888, a copy of these papers certified by the clerk of the Chancery Court was filed in the office of the clerk of the Circuit Court. And thereupon the clerk of the Circuit Court issued another execution on the judgment referred to. The defendant on the 5th of May. 1888, moved in the Circuit Court that this execution be quashed.

The motion was overruled, and the defendant appealed.

Reversed, and execution quashed.

W. P. & J. B. Harris, for the appellant.

Supposing that the certificate filed pretendingly on the 22d, but actually on the 23d of December, 1887, be good, still the filing of a correct voucher on the 22d could not relate back so as to render valid the unauthorized act of Robert Scanland on the 12th of December? There is not the slightest warrant for such a conclusion. If he could not have sued out sci. fa., he could not have had summary revival under § 1747. Could he sue out execution lawfully without either?

It will be at once perceived by the court, that the statute, § 2091, will be without efficacy unless the unauthorized act or suit or proceeding be treated as utterly void. The judgment or debt, whatever its form or character, is the property of an estate not to be disposed of by the debtor, nor by him and any stranger (and the foreign administrator is such unless he has acquired power by complying strictly with the Code). This requirement is not a technical form, but matter of substance, the pith and marrow of a most important legislative provision in the interest, not of debtors, but of the property of non-residents--the fruit of comity.

There is but one authority necessary to be cited on this question, and that is Hope v. Hurt, 59 Miss. 174.

There is not the slightest warrant for applying the fiction of relation back, to cover antecedent acts of a foreign administrator. There is no reason for it, no necessity for it. If he acts without complying with the statute he violates a positive law.

Let us not construct an equity out of the statute of limitations and § 2091. In the one case it has been repeatedly announced by this court that there is no equity outside of its terms, and there is no equity beyond the terms of the other.

There was no right or power, under the general law, in a foreign administrator to institute proceedings in court for the recovery of debts. He must take out letters here, and become an administrator here, or declining to do this, he may file the requisite vouchers of his appointment by the foreign court, and by that means acquire the limited power prescribed. It is strictly a statutory power, a special power, and must be strictly complied with.

Smith v. Lockwood, 13 Barb., 209; Andover Turnpike Co. v. Gould, 6 Mass., 40; Franklin Coal Co. v. Byers White, 14 Mass. 470. The point is too well settled to need elucidation.

The case of Nye v. Cleveland, 31 Miss. 440, was where the parties were both living, and the right to sue out execution existed. The execution was quashed for errors committed by the clerk; an erroneous cost bill, and a wrong rate of interest claimed after judgment. The plaintiff was not in fault, and the judge who made the decision not friendly to the plea of the statute of limitations.

W. P. Harris, for the appellant, argued the case orally.

T. J. Carson, for the appellee.

If the ruling of the court below was correct in quashing the pluries execution of Dec. 12, 1887, because the foreign administrator, Scanland, had neither taken out ancillary administration nor availed himself of the provisions of Section 2091, Code 1880, before having that one issued (upon which point an expression of opinion is most respectfully requested of this court), yet this court has frequently held that the issuance of an execution after the death of either a sole defendant or plaintiff on a judgment, without first reviving it, is not absolutely void, but only voidable. Other States recognize a contrary doctrine; but this court has an unbroken line of decisions from 1 Miss. down, adhering to the rule. So that I can safely invoke the doctrine of stare decisis on this point. See Hicks v. Moore, 1 Miss. p. 66; 2 How., p. 601; Shelton v. Hamilton, 23 Miss. p. 497; Drake v. Collins, 5 Howard, p. 256; Thompson v. Ross, 26 Miss. p. 198; Hodge v. Mitchell, 27 Miss. p. 564; Harrington v. O'Reilly, 9 S. & M., p. 216; and Hughes v. Wilkinson, 37 Miss. p. 491.

Now, for the sake of argument, suppose that I admit that the pluries execution of Dec. 12, 1887, was properly quashed, then what effect would that have upon the statute of limitations invoked by appellant? A void execution does not interrupt the running of the statute, but a voidable one does. The rule on this point is more uniform than the one above referred to as to what constitutes void and voidable executions; but it is only necessary for me to refer to the case of Nye v. Cleveland et al., 2 George, p. 440, which is conclusive.

In the case at bar the foreign administrator had complied with the terms of § 1747, Code of 1888, and it would be absurd to hold that its benefits are restricted to resident executors and administrators.

Calhoon & Green, on the same side.

1. The question arises whether the fi. fa. of Dec. 12th, 1887, is valid, void or voidable? If the same prevented the statute of limitations from running?...