McCalley v. Wilburn & Co.

77 Ala. 549

• Court: Supreme Court of Alabama
• Decided: December 15, 1884
• Status: Published

Opinion

SOMEBYILLE, J.

In Wilburn & Co. v. McCalley, 63 Ala. 436 — the title under which this cause was last before us on appeal — it was decided that the proceedings of the Probate Court, which authorized the execution of the note given by "W". J. McCalley, as the administrator of his wife’s estate, were void for -want of conformity to the statute, and, for this jurisdictional defect, neither the note itself, nor the judgment to which it was reduced by suit, was binding upon the estate of the decedent. That case, however, is no authority for the assumption, that the note did not impose a personal liability upon McCalley, as its maker. If his petition to the Probate Court had contained all the requisite jurisdictional allegations, and the order of the court based on the petition had been otherwise regular, it is very clear that the obligation given by the administrator would have been binding on him only in his representative capacity, and he would not have been in any wise personally liable. Such is the express declaration of the statute. But this is the case only where the proceedings of the court are valid, so as to confer upon the administrator the legal authority to bind the estate by the execution of “ such note, bond, or bill.” — Code, 1876, § 2432. It is obvious that an administrator can not shield himself from personal liability, by refuge under an order which is absolutely void. The rule of law which governs his liability is analogous to that governing trustees and agents in general. Where he undertakes to bind the estate, and fails to do so for .want of authority, he binds himself personally, and may be sued upon his contract individually. — Whitesides v. Jennings, 19 Ala. 784. And in such cases, it avails him nothing, that he intended only to bind himself in his representative capacity. — Thatcher v. Densmore, 5 Mass. 595; Vann v. Vann, ex’r, 71 Ala. 154. However this may be, the judgment rendered in the Circuit Court of Madison county on June 19, 1875, against McCalley, in favor of Wilburn & Co., was conclusive of all defenses which might have been urged against the note prior to the rendition of such judgment. The suffering of judgment nil dicit by the defendant precludes him from now denying that he owes the plaintiffs the money adjudged by a court of competent jurisdiction to be due them. — Mervine v. Parker, 18 Ala. 241; McDonald v. Mobile Life Ins. Co , 65 Ala. 358 ; Freeman on Judg. § 435. This judgment is rendered against the defendant, McCalley, personally, and not against him in his representative capacity. The affix of the word “ adntirf in the margin, is, at most, a mere descri/ptio personae; and the concluding phrase — “ to be levied of the goods and chattels of said intestate, in his hands to be administered” — -is mere surplusage, capable of rejection by amendment as a clerical misprision. It can not, therefore, affect the binding force of the judgment on the defendant in his personal or individual capacity.

We can see no good reason whatever for the contention, that the injunction bond given by the appellants is not a statutory bond. It is executed in double the amount of the judgment sought to be enjoined, with proper security, being payable to, and approved by the register, and is also conditioned, on the dissolution of such injunction, to 'pay the amount of the judgment enjoined, with interest, and such damage and costs as may be decreed against the party at whose application the writ was granted. — Code, 1876, § 3869. The suggestion, that the purpose and legal effect of the writ was not to enjoin the judgment, but only to prevent the sale under it of a particular piece of landed estate, is refuted by the entire chancery proeeediugs upon which the injunction was based, as we find them fully set out in the record.

The bond being one to “ enjoin proceedings at law on a judgment for money,” in view of the dissolution of the injunction, has impressed upon it, by express provision of the statute, “the force and effect of a judgment;” and having been certified by' the register, to the clerk of the court in which the judgment was rendered, execution was properly issued against the appellants, as obligors, for the amount of such judgment which had been enjoined, with interest and damages. — Code, § 3876._

The judgment of the Circuit Court, quashing the petition for supersedeas filed by appellants, and dismissing the same, is free from error, and must be affirmed.