Middleton's Adm'r v. Maull's Adm'r

DARGAN, J.

I cannot concur in the opinion of the court. I think it too clear to admit of argument, that a decree of insolvency, rendered in accordance with the provisions of the act of 1843, is final and conclusive on all the creditors, and neither they nor any one else can be permitted again to litigate that question. The fact of insolvency by the decree be-cómes res adjudicata, and is equally as conclusive on all parties as any other sentence or judgment pronounced by a court of competent jurisdiction.

The only question, therefore, is, whether any creditor can be permitted (if he has failed to file his claim within six months after the estate has been declared insolvent) to litigate any question with the administrator, wfith the view to swell the amount of the assets and thus create a larger dividend. If a creditor who has neglected to file his claim with the clerk within the time prescribed by law can be permitted to do this, has he not the right to show that the assets are sufficient to .pay all the debts, and thus re-litigate the question of insolvency?

In the case of Hollinger v. Holley, 8 Ala. 454, this act was fully considered, and the court held, that if a creditor neglected to file his claim within six months after the. decree of insolvency, in the office of the clerk of the Orphans’ Court, his *485claim or demand was barred. I am satisfied that this opinion is a correct exposition of the act; and if a creditor omits to file his claim with the clerk in the manner prescribed, he cannot be permitted to litigate any question whatever with the administrator in reference to the' amount of the assets in the Orphans’ Court.

It is however urged that the case of Phelan v. Phelan, 13 Ala. 679, is opposed to the case of Hollinger v. Holley and to the views here expressed. The facts of that case were peculiar. The creditor who had not filed his claim had obtained a judgment at law against the administrator before the decree of insolvency. It afterwards appeared, that the estate was solvent, and after paying all claims that had been filed in the clerk’s office, there was a large balance in the hands of the administrator, who then paid all the judgments against him but one, which had not been filed with the clerk within the prescribed time, and did not contest the payment of this one, but insisted as against the right of the distributees to retrieve the amount of the judgments he had paid, as well as the amount of the one not paid, but which he did not contest. We held that he ought to be permitted as against the distributee^ to retain those amounts.

If it be conceded that this decision can be sustained, which I think is very doubtful, yet it will not sustain the position that a creditor can litigate on a final settlement the question of the insolvency of the estate, to avoid the consequences resulting from a failure on his part to file his claim within a pres'cribed time. Plere the administrator insists on the failure of the creditor to file his claim as a bar to all litigation against him in the Orphans’ Court. To hold that this does not create a bar, when pleaded as such, I think not only overrules the case of Hollinger v. Holley, but -, is directly repugnant to the intention and design of the act of 1843.