Street v. Street

113 Ala. 333

• Court: Supreme Court of Alabama
• Decided: November 15, 1896
• Status: Published

Opinion

McCLELLAN, J.

J. C. Street, as executor of the last will of Merrit Street, deceased, filed this bill against A. J. Street, J. W. Street, R. Y. Street, and others as heirs and devisees or creditors, or both, of the said Merrit, praying that the administration of the estate of the decedent be removed into the chancery court, that the will be construed, that said R. Y. Street be enjoined from further intermeddling and interfering with the property of said estate ; that it be referred to the register to ascertain the valid claim against the estate, &c., &c. The chancery court by formal decree assumed jurisdiction of said administration, and in due course referred it to the register “to ascertain all valid outstanding claims against the estate of the said Merrit Street, deceased.” On the reference thus ordered, the claim of A. J. Street as an alleged-creditor of said estate was propounded, considered and disallowed. The report- of the register to this effect was confirmed by the chancellor; and the present appeal is intended to bring under review that action of the chancery court.

Motion is made in this court to dismiss the appeal on the grounds : “ 1. The alleged appeal was taken in this cause on, to-wit, August —, 1895, since which time this division of the Supreme Court was called, and no transcript of the cause was filed at the first call to which it co aid have been filed, and no abstract of the record printed and furnished the appellees' counsel at that time. 2. No appeal has ever been taken in this cause.” The appeal, if taken, was to the November Term 1895-96, commencing the first Tuesday in November, 1895, and ending the last day of June, 1896. The transcript was filed during that term, that is, on June 8, 1896. At that time also the abstracts required by the rule were filed. This is, therefore, not a case like Bayzer v. McMillan Mill Co., 105 Ala. 395; Sears v. Kirksey, 81 Ala. 98, and Winthrow v. Woodward Iron Co., 81 Ala. 100, in which the transcripts were not filed until a term of the court succeeding that to which the .appeal was taken; and those cases are not authority in support of this motion.

The rule of this court which requires transcripts to be filed with the clerk by noon “of the first day of the first week during which such case is subject to call,” does not authorize a dismissal of the appeal for a failure to so file the transcript, except upon motion of the appellee ‘ ‘made not later than the next Thursday.” The appeal in this case was to a time antecedent to the week allotted to the division to -which the case belongs in the first half of the term of 1895-96, and it was, therefore, subject to call during that week. The transcript was not filed by noon of the first day of that week, nor at all during the week ; but the appeal can not be dismissed on that ground because no motion was made to that end until long after the Thursday succeeding the day on which the record should have been filed. So that the rule in question does not aid the motion to dismiss this appeal. 89 Ala. XI.

This court has always exercised a liberal discretion in the enforcement of the rule requiring abstracts to be filed. This rule was violated by the appellant in not having prepared and printed his abstract in time for the submission of the cause when the Seventh Division was called in January, 1896. But the motion to dismiss on that ground would appeal much more strongly to us if it had been made at that time. Coming as it does several months later, and after the appellant has prepared, printed and filed a voluminous abstract, we are not inclined to a strict enforcement of the rule against him.

The second ground of the motion to dismiss the cause here, viz., that “no appeal has ever been taken in this cause, ’ ’ is also untenable. If it be true that the bond for costs of the appeal is irregular in that it refers to the decree intended to be appealed from as a “judgment in favor of defendant for costs of suit, ’ ’ it was clearly the right of the appellant to be informed by the motion— and more especially so when the submission thereon was without argument disclosing the point of objection — in respect of the particular defects complained of, to the end that the bond might be amended or another substituted for it; and the failure of the motion to so direct attention to the infirmity objected to is a waiver thereof on the part of the appellee. — 1 Encyc. PI. & Pr. 1002.

Moreover, the bond in its present form is sufficient to support an appeal. Its use of the word “judgment” instead of the word “decree” would certainly not be vitiating. Its reference to the appellee as “defendant” in the court below where he was complainant is innocuous when it fully appears that the judgment intended to be appealed from was one against the appellant who is incorrectly put in the place of plaintiff or complainant below. And there was in fact a decree or “judgment” against the appellant, rendered on the day stated in the bond, “for costs of suit.” From that decree A. J. Street had the same right of appeal as from one disallowing his claim ; and it is in effect an appeal from the decree adjudging his claim invalid, since the disallowance of the claim and the awarding of costs against all parties whose claims, were rejected, of whom A. J. Street was one, are but parts of one and the same decree.

The prayer for the appeal is in all respects regular, describing the decree appealed from as “the decree of the chancellor on confirming the report of the register on reference had in this cause, in which the claim of A. J. Street, claimant, is disallowed.” And the citation covers this decree disallowing the claim of A. J. Street.

The objection now taken to the register’s certificate to the transcript is in no way indicated in the motion to dismiss the appeal. Of course the certificate is amendable, and an appeal can not be dismissed for defects in it without opportunity to amend being given. The motion to dismiss as made was a waiver of any defects in the certificate, if any there were.

But we do not find the certificate open to the objections made in the brief of appellees’ counsel. It was in nowise necessary for the transcript to contain the full record and proceedings of the court in this cause involving many matters wholly distinct from the issue as to the indebtedness of Merrit Street’s estate to A. J. Street. It was only necessary that the transcript should set out the record and proceedings of the court so far as they had reference to the claim of A. J. Street against the estate; and the register certifies that the transcript does contain such record and proceedings. If it does not, appellee should have asked for a certiorari. The motion to dismiss the appeal is denied.

On the reference held by the register, A. J. Street proposed to prove by J. W. Street certain transactions with or statements by .the decedent going to show that the estate of the latter was indebted to A. J. Street; the precise offer being to show that this witness was present with A. J. and Merrit Street when a settlement was made between them and that upon that settlement Merrit was indebted to A. J. in a certain sum. Complainant objected to this testimony '‘on the ground that the witness was a party to the record in this cause, that Merrit Street was dead and his estate was interested in the result of this proceeding, and the question called for a transaction with him.” This objection was sustained, and this and much other proposed testimony of like kind and effect was excluded by the register. The statute, in supposed obedience to which this was done, is in the following language : “In civil suits and proceedings, there must be no exclusion of any witness because he is a party or interested in the issue to be tried, except that no person having a pecuniary interest in the result of the suit, shall be allowed to testify against the party to whom his interest is opposed, as to any transaction with, or statement by, the deceased person whose estate is interested in the result of the suit or proceedings, or when such deceased person, at the time of said transaction or statement, acted in any representative or fiduciary relation whatsoever to the party against whom such testimony is sought to be introduced, unless called to testify thereto by the party to whom such interest is opposed, or unless the testimony of such deceased person in the relation to such transaction or statement is introduced in evidence by the party whose interest is opposed to that of the witness ; Provided further, that no person who is an incompetent witness under this statute shall make himself competent by transferring his interest to another.” We are unable to see how the admission of the proposed testimony would have been violative of this statute. It is true that the witness, J. W. Street, was a party to the record in this cause, but it is not true that be had any pecuniary interest in the result of the proceeding between the executor and A. J. Street opposed to the interest of the estate of Merrit Street, deceased. The witness, like A. J. Street, was a party to the record only as one who claimed to be a creditor of the estate of Merrit Street. If he had any interest at all, it was only as such creditor, and his claim in that capacity was entirely independent of that of A. J. Street: The success of A. J. Street could in no manner or degree aid the witness in the establishment of his alleged indebtedness against the estate. And more ; not only had he no interest in the issue being tried between complainant and A. J. Street, opposed to the interest of the party against whom his testimony is offered, but if he was interested at all upon that issue his interest is opposed to that of the party who called him as a witness, since, as there is a question whether the estate is solvent, the establishment of A. J. Street’s claim, which is for a very large sum of money, might well result in forcing J. W. Street to share in a ¡oro rata payment of the debts of the estate, instead of receiving payment in full as might be the case if A. J.’s claim were disallowed. Very clearly, we think, the case is not within the exception to the statute removing the disqualification of witness on account of interest, and the proposed testimony should have been received.

On the report of the register disallowing A. J. Street’s claim coming before the chancellor for confirmation, the complaint of said Street was not that the register reached an erroneous conclusion on evidence before him, but that he refused to receive and consider the evidence offered by the claimant, and, not only so, but failed even to hear and set down the testimony thus rejected. There thus being no evidence, or not sufficient evidence of Street’s claim, because of the register’s erroneous ruling in excluding that to which we have adverted, and because of his unwarranted failure to set down the proposed testimony, it was not possible for the claimant to specify in his exceptions to the register’s report the particular evidence relied on by him to overthrow that officer’s conclusion of fact. He did not complain, indeed, of this conclusion of fact, and could not, since on the evidence admitted the conclusion was correct; but of the register’s conclusion of law against admissibility of the testimony offered by him tending to support his claim against the estate. And with the report of the register, and the statement of the proceedings before him in this condition, the claimant' could do no more by his exceptions to the report than to point out specifically, as he has done, the rulings of the register rejecting the testimony offered by him.

It is further insisted for appellees that the error of the register in rejecting the testimony referred to was without injury to the claimant, because there was a plea interposed on the reference denying that this claim had been presented or filed within eighteen months from the grant of letters testamentary, and he offered no evidence of such presentation or filing and hence that the register would have had to disallow the claim had all the proposed evidence been received. It would seem that this position is untenable in itself, since the proof of presentation of a claim would naturally and regularly, if not necessarily, come after proof of the existence of it; and the evidence of the existence of this claim having been excluded by the register, the failure to offer evidence of its presentation is to be ascribed to that fact, and such failure is to be regarded rather as one of the injurious consequences of the register’s erroneous ruling than as demonstrating that such ruling did not prejudice the complainant.

But aside from all that, the fact of presentation’or filing of his claim is clearly averred in the bill, and is there made in effect one of the grounds for the removal of the administration into the chancery court. Presentation or filing vel non of the claim was, therefore, not an issue in the cause as between the executor and A. J. Street, the parties in interest to this appeal, nor a matter covered by the reference to the register. If all the legal testimony offered had been admitted, and sufficed to satisfy the register that A. J. Street’s claim was a just one, he should have allowed it without any evidence that it had been seasonably filed or presented. Of course a different question would be presented if another creditor should raise the issue of presentation vel non, if the estate should prove insolvent.

The register erred in excluding the evidence to which we have adverted. The chancellor erred in affirming the register’s action in that regard, and confirming the report. The decree is reversed and the cause remanded.

Reversed and remanded.