McDonald v. Carnes

• Decision Date: 22 May 1890
• Citation: 7 So. 919,90 Ala. 147
• Parties: MCDONALD v. CARNES ET AL.
• Court: Alabama Supreme Court

7 So. 919

90 Ala. 147

MCDONALD v. CARNES ET AL.

Supreme Court of Alabama

May 22, 1890

Appeal from probate court, Marshall county; T. A. STREET, Judge.

Application of A. J. McDonald, as administrator of M. P. Carnes deceased, for a final settlement. The court disallowed several items of credit on the administrator's account. The administrator appeals, and assigns various rulings as to the admission of evidence as error.

Lusk & Bell, for appellant.

O D. Street, for appellees.

SOMERVILLE J.

1. The original entries made by a person in his own books, or made by his clerk, when apparently done in the ordinary course of business, and contemporaneously with the transaction to which such entries relate, are generally admissible in evidence to prove the correctness of all items within the knowledge of the person making them. Such entries are required to be corroborated by the testimony of the party who made them, if he is living, inasmuch as they are not self-proving; but if he be dead, or insane, or indefinitely absent from the state proof of his handwriting will be sufficient. Dismukes v. Tolson, 67 Ala. 386; Bank v. Knapp, 15 Amer, Dec. 181, note, 191-194; Elliott v. Dycke, 78 Ala. 150; Davis v. Tarver, 65 Ala. 98; Setchel v. Keigwin, 57 Conn. 473, 18 A. 594; 1 Greenl. Ev.§§ 118-120. The case of Moore v. Andrews, 5 Port. (Ala.) 107, decided in 1837, holding the contrary view, is opposed to the weight of authority, and to our more recent decisions. The evidence introduced by appellant was sufficient under this rule prima facie to authorize the admission in evidence of entries on the shop books of Jordan, Manning & Co., and of Wallace Henry, deceased. In each case the handwriting of the person making the entry was satisfactorily proved, and this was supplemented with the further proof either of the death of such party, or his indefinite absence from the state. The items covered by the first nine assignments of error were erroneously excluded, so far as we can discover from the record.

2. The probate court also erred in admitting in evidence the alleged agreement between R. N. Bell, Esq., and the executor of Henry, that the latter would refund the money paid him on the account claimed to be due from the estate of Carnes to said Henry's estate, in the event the court should disallow the credit on the present settlement. There was nothing in this precautionary agreement which could have any bearing on the correctness of the account as a proper claim against the estate. If it was just and correct, and no valid objection existed, it was a proper credit for the administrator upon proof of its payment. Otherwise not. These were the only issues for the probate court to decide. Henry's executor, Rives, was not introduced or offered as a witness, and conceding, therefore, that this agreement showed him to be interested, this was immaterial. The record contains no statement from which we can discern the nature of the objections raised to the other contested items of the account, except in a most general way. If we were to attempt to rule on them in detail we might do injustice to the parties. The following principles will probably be sufficient for the purposes of another trial.

3. The various items on the credit side of the administrator's account may be proved by the affidavit of any competent witness,...