Bobo v. Gunnels

92 Ala. 601

• Court: Supreme Court of Alabama
• Decided: November 15, 1890
• Status: Published

Opinion

STONE, C. J.

Our decisions have uniformly held that there is no privity between an administrator in chief and the administrator de bonis non. — Martin v. Ellerbe, 70 Ala. 326, 341, and authorities cited; Graves v. Flowers, 51 Ala. 402; Freeman on Judgments, § 163. Our statutes, however, have made some changes in the law defining the powers and liabilities of the administrator de bonis non, but they do not affect the case before ns. A judgment against an administrator in chief can not, under our statutes, be revived against the administrator de bonis non. There is no statute authorizing such a revivor. — Code of 1886, §§ 2280, 2606, 2923, et seq.; Kirby v. Anders, 26 Ala. 466; Hurst v. Williamson, 42 Ala. 296 ; Freeman on Judgments, §§ 44 et seq; 12 Amer. & Eng. Encyc. of Law, 150f, et seq ; Bean v. Chapman, 62 Ala. 58; Same v. Same, 73 Ala. 140.

Whether the plaintiff has any recourse against the administrator de bonis non, or whether he must proceed against the administrator in chief and his sureties, it is not for us to determine at this time. Enough for us that he is not entitled to-the remedy he seeks.

In the case of Graves v. Flowers, 51 Ala. 402, it was decided that a judgment against the personal representative in chief did not supply a cause of action, on which a suit could be maintained against the administrator de bonis non, nor could such judgment be used as evidence in the second suit. We withhold our opinion on that question, and will treat it as-an open one should it again come before us.

The judgment of the Circuit Court is reversed,- and a judgment here rendered quashing the scire facias, at the cost of Gunnels, the mover.

Reversed and rendered.