Welch v. Walker

4 Port. 120

• Court: Supreme Court of Alabama
• Decided: June 15, 1836
• Status: Published

Opinion

HITCHCOCK, C.. J.

— This was a citation issued by the Judge of the County Court of Madison county, in favor of Walker and his. wife, against George W. Welch, as administrator of Samuel D. Sher-rell, deceased, to shew cause why they should not have judgment and execution against him for their distributive share of the balance due from him, as administrator of said Sherell, deceased, on a settlement theretofore made.

The citation is directed to Franklin county, upon which there is an endorsement as follows: “ I acknowledge the service of the within notice. Signed G. W. Welch, September 30, 1834.”

At the October Term, eighteen hundred and thirty-four, of the Court, a judgment by default was rendered, awarding execution in favor of the plaintiffs, “ for the sum' of one hundred and thirty-nine dollars and thirteen and three fourth cents, the distributive share of the balance due from said administrator, on settlement of said administration, settled on the eighth day of November, eighteen hundred and thirty,” together with the sum of forty-two dollars and eighty-cents damages, being the interest on said sum, besides costs, &c.

It is insisted, that this judgment is erroneous, for the following reasons:

1. It does not appear that any service of the citation was ever made on Welch, the defendant.

2. There is nothing, either in the citation or in the record, going to shew any amount of indebtedness, on the part of the defendant below, and

3. There is nothing showing the number of persons entitled to distribution of the estate.

These reasons, we think; are well assigned.

To allow a judgment, upon a writ or citation, not returned by the sheriff, without any proof of the truth ofthe acknowledgmentof the service by the defendant, would be extremely irregular : both the Court and parties would be liable to the grossest deception. In such a case, satisfactory proof should be adduced of the genuineness of the signature to the acknowledgment of service. If the writ appeared to have been received by the sheriff, such a return as the above might be considered as his return; but the mere appearance of the acknowledgment by the defendant, of his name on the back, is not prima facie evidence of the fact — Demon, survivor, vs Swaim’s administors.

*

As to the other two assignments, it may 'be remark" ed, that since the act of January, eighteen hundred and thirty, the final settlements of the accounts of administrators have the effect of judgments, and execution may issue upon them without any further proceedings. If they have lain dormant a year and a day, or if in the settlement, the distributees are not specifically named, and their respective amounts allotted to them, a citation may issue; hut in such a case, the record should shew what the previous proceedings were, so that the Court, in case a writ of error is taken, can know what was done below. In this case, it does not appear but that a previous execution within a year and a day may have issued. If so, no citation was necessary or proper. The decision in the case of Boggs vs Bandy* — is overruled, and the doctrine contended for in the dissenting opinion in that case, is recognized by us to be the correct law. The citation being in the nature of a sci.fa.., should state so much of the previous proceedings as to enable the Court to act upon the subject advisedly. In this case, the citation is wholly defective. If the settlement, though final, has not made distribution to those entitled, this should be stated, so that the defendant may know what he has to defend, and the Court may know what they have to adjudicate.

The judgment must be reversed.

5Stew. & Porter,293,

2 stewt. 459.