Summary
holding that chancery clerk is "not a judicial office"
Summary of this case from U.S. v. HarrisOpinion
No. 31537.
January 21, 1935.
1. CLERKS OF COURTS.
As respects liability of chancery clerk for failure to attach to claim against estate certificate that claim was probated, allowed, and registered, probating, allowing, and registering of claims against estate are not "judicial acts" (Code 1930, sections 338, 340, 1671).
2. EXECUTORS AND ADMINISTRATORS.
Whenever claim against estate of decedent, to which affidavit in compliance with statute is attached, is presented to clerk for probate, clerk has mandatory duty to admit claim to probate by attaching his certificate thereto (Code 1930, sections 338, 340, 1671).
3. OFFICERS.
Public officer's act is "ministerial" if duty has been positively imposed by law and its performance required at time and in manner or upon conditions which are specifically designated, duty not being dependent upon officer's judgment or discretion; and that a necessity may exist for ascertainment from personal knowledge or by information of those facts or conditions upon existence or fulfillment of which performance of act becomes a clear and specific duty does not convert act into a "judicial act."
4. CLERKS OF COURTS.
Bill against chancery clerk and his surety for failure to attach to claim against estate clerk's certificate setting forth that claim was probated, allowed, and registered, because of which failure claim was disallowed, held not demurrable because not alleging that administrator possessed assets with which to pay claim if it had been properly probated, since claimant would at least be entitled to nominal damages (Code 1930, sections 338, 340 1671).
APPEAL from the Chancery Court of Pontotoc County.
Dean Belk, of Holly Springs, for appellant.
Where the acts of a clerk of a court are subject to confirmation or rejection by the judge of that court, all acts of the clerk are ministerial.
11 C.J. 848; 11 C.J. 884; sec. 54; Section 340, Miss. Code 1930.
Although sections 337 and 338 of our Code give the clerk certain powers to do and perform acts at any time, under section 337, and at rules under section 338, these acts depend for their validity upon being confirmed by the court; and even these acts are merely quasi judicial functions.
The rule is that if there be sufficient equity on the face of the bill to require an investigation of the facts, in other words, if the bill has some merit, and considered as a whole, shows a good cause of action, it will stand against a general demurrer.
Griffith Chancery Practice, secs. 170, 291, 298, 310.
The original bill charges a public officer with neglect of duty under section 2903 of our Code, and it is impossible for the mind of this scrivener to conceive that such rule would here apply so as to make it encumbent upon probate creditors that they be required to coerce a public officer into the performance of his duties or any one of them.
Lester G. Fant, Jr., of Holly Springs, for appellant.
The question, therefore, is not whether the statute shall be unheld, but whether the probate of the claim in the case at bar complied substantially with the statute. Upon this issue, which we submit is the only issue in the case, the appellees make no argument except to state as their conclusion of law that the certificate upon the back of the copy of the note was a separate certificate from the certificate of probate. And that although the two were bradded together permanently, the fact that the seal was impressed once instead of twice, and that a date was written once instead of twice, makes the probate of the claim invalid. Such is not the law.
Bankston v. Coopwood, 99 Miss. 511, 55 So. 48.
A substantial, and not a literal, compliance with the statute is required.
Walker v. Nelson, 87 Miss. 268.
The appellees have argued that the decision in the case of Bank v. Fox, cited, is a part of the statute, since the statute was re-enacted in 1934. This in an effort to show that the acts of the clerk were not in compliance with the statute. We call the court's attention to the fact that the claim was probated early in 1932, and that the case of Bank v. Fox was not decided until 1933, and the re-enactment of the statute took place in 1934. Therefore, the law in this case is the statute as it existed in 1932, and that statute simply requires that the copy of the original be certified to by the clerk.
Cheairs v. Cheairs, 81 Miss. 662; Walker v. Nelson, 87 Miss. 268; Saunders v. Stephenson, 94 Miss. 676; Lehman v. Powe, 95 Miss. 446; Packing v. Miller, 103 Miss. 435; McMahon v. Foy, 104 Miss. 309; Persons v. Griffin, 112 Miss. 643.
Without the exact or substantial written endorsement by the clerk there is no proper probate or allowance of the claim.
Levy v. Bank, 124 Miss. 324.
A.M. Mitchell, of Pontotoc, for appellees.
The common law has been changed by practically every state in the union, and especially so in Mississippi, by sections 337 and 338 of the Mississippi Code of 1930, and an examination of these two sections, setting forth both the power and the duties of the clerk in vacation, and also at rules, shows clearly and decisively that the acts of the clerk are not confined to merely clerical or ministerial functions, but under both sections he is vested with a discretion in the performance of his duties.
18 R.C.L. 124, sec. 38.
The determination as to whether the act in question is ministerial depends upon the nature of the act rather than the nature of the office, since duties purely ministerial are frequently cast upon officers whose chief functions may be judicial or quasi judicial, and duties quasi judicial upon officers or boards whose general functions are nonjudicial.
18 R.C.L. 116, sec. 29.
Argued orally by Dean Belk, for appellant.
This is an appeal from a decree dismissing an original bill of complaint. The bill alleges, in substance, that the appellant presented to the appellee, Gilmore, who is the chancery clerk of Pontotoc county, a claim for one thousand fifty-three dollars which she desired to probate against the estate of Mrs. Cynthia E. Harris, deceased, for services rendered the deceased during her last illness, which claim was itemized and sworn to by the appellant in accordance with the governing statute, and which Gilmore accepted and registered, but negligently failed to attach thereto his certificate setting forth that the claim was probated and allowed for one thousand fifty-three dollars, and registered, because of which the claim was disallowed by the chancery court in a proper proceeding. The clerk and his bondsmen were made defendants to the bill, and its prayer, in addition to the one of general relief, is for a decree against the appellees for one thousand fifty-three dollars, with interest thereon.
A demurrer to the bill was sustained, the grounds of which may be reduced to: (1) The complainant has a full, complete, and adequate remedy at law; (2) "that said bill shows on its face that the failure to endorse on said claim the words `probated and allowed for $ ____ and registered this the ____ day of ____ 19__' was a judicial act for which, under the law defendants are not liable in damages;" (3) the bill contains no allegation that the administrator possessed or could have possessed money or property belonging to the decedent with which to pay the claim had it been properly probated.
The first of these grounds of demurrer is not here pressed, and no argument has been presented to us thereon. We will, therefore, express no opinion on it. On the return of the case to the court below, that question, if the parties desire, may be raised by a motion to transfer to the circuit court.
The second of these grounds of demurrer presents a question of apparent, though not of real, difficulty. The office of the clerk of the chancery court is not a judicial office, though, under some circumstances, he discharges duties at least quasi judicial, subject to the approval of the chancery court. Sections 338, 340, Code 1930. The probating, allowing, and registering of claims against the estate are not such. Nor has any discretion been delegated to the clerk in the doing thereof. Whenever a claim against the estate of a decedent, to which an affidavit in accordance with section 1671, Code 1930, is attached, is presented to the clerk for probate, all he has to do is to compare the affidavit with the form prescribed therefor by the statute, and, if it complies therewith, it then becomes his mandatory duty to admit it to probate, evidencing that fact by the ministerial action of attaching his certificate thereto in the form provided by the statute, which is, "probated and allowed for $ ____, and registered this ____ day of ____, A.D. ____" While no inflexible rule can be laid down for determining in every case whether or not an act of a public officer is ministerial or judicial, "The most important criterion, perhaps, is that the duty is one which has been positively imposed by law and its performance required at a time and in a manner or upon conditions which are specifically designated, the duty to perform under the conditions specified not being dependent upon the officer's judgment or discretion. . . . That a necessity may exist for the ascertainment, from personal knowledge or by information derived from other sources, of those facts or conditions, upon the existence or fulfillment of which, the performance of the act becomes a clear and specific duty, does not operate to convert the act into one judicial in its nature. Such, it is said, is not the judgment or discretion which is an essential element of judicial action. Thus a sheriff must determine whether process coming into his hands for service, is issued from a court of competent jurisdiction and is regular on its face, and a treasurer of public money must ascertain whether a warrant for its payment is drawn by such an officer and is in such a form that its payment becomes a duty; but the execution of the process and the payment of the warrant are ministerial acts." Mechem on Public Officers, sections 657 and 658; McNutt v. Livingston, 7 Smedes M. 641; Flournoy v. City of Jeffersonville, 17 Ind. 169, 79 Am. Dec. 468 and note thereto.
The third of these grounds of demurrer is without merit, and it will not be necessary for us to determine whether the allegations of the bill are sufficient for the recovery of the amount of the claim attempted to be probated; for, aside from that, the appellant would be entitled to recover nominal damages. The bill discloses the violation of the appellant's legal right under section 1671, Code 1930; and for the violation of infringement on such a right the law permits damages, even though they may be merely nominal. 17 C.J., pp. 718, 720; Southern Ry. Co. v. Kendrick, 40 Miss. 390, 90 Am. Dec. 332; Hale on Damages, p. 29 et seq.; Sutherland on Damages (3 Ed.), vol. 1, sec. 9, vol. 2, sec. 490; McGhee v. Laurel Light R. Co., 113 Miss. 603, 74 So. 434; Wm. Foerster Co. v. Faulk-Christian Lumber Co., 105 Miss. 612, 62 So. 648.
Reversed and remanded.