76 Ala. 414 | Ala. | 1884
— It is a well settled principle, that a court has no power to alter, vary or annul final judgments, not void, after the expiration of the term at which they were rendered, except for the correction of clerical errors or omissions, or to amend nune pro taino on the record. It is also well settled, that when a judgment, void for want of jurisdiction, has been rendered, the court has the power, and will, on a proper application, vacate such judgment, at any time subsequent to its rendition. — Buchanan v. Thomason, 70 Ala. 401.
On the application of the administrator of the insolvent estate of plaintiff’s intestate, the Probate Court made an order, in 1874, vacating and annulling an order made by the same court in 1867, allotting and setting apart a homestead for the widow and minor child of the decedent. It is insisted that the later order is void, for the reason that the previous order is merely irregular, and that the court is without power to vacate it at a subsequent term. The application to vacate the former order was a proper one, and came from a proper party. On this application, the Pobate Court acquired jurisdiction to hear and determine the matter, — jurisdiction of the subject-matter, and of the parties. The validity of the former order was a matter directly in issue, and was decided. However erroneous may be the judgment of the court, it is conclusive, until reversed or annulled hy some appropriate proceeding, and can not be collaterally impeached. — Lyon v. Odum, 31 Ala. 234 ; Barron v. Tart, 18 Ala. 668.
As a general rule, the statute of limitations does not begin to run, until there is some one entitled to sue, and some one liable to be sued. The rule rests upon the principle, that “the term ‘cause of action’ implies not only a right of action, but also that there is some person in existence, who is qualified to institute process.” — Angelí on Lim. §§ 54-62. If, however, the statute has once begun to run, no subsequent disability suspends its operation, unless by statutory provision. Under this rule, it has been held, that where an administrator makes an illegal sale, or bailment of the goods of the intestate, or disposes of them in violation of his trust, the statute will not commence running until the appointment of an administrator de bonis non. — Lawson v. Lay, 24 Ala. 184; Wyatt v. Rambo, 39 Ala. 510. The administrator, by his unlawful act, has estopped himself from suing, and until the appointment of an administrator de bonis non, there is no one to maintain the suit for their recovery, against whom the statute can operate.
The defendant was appointed, in January, 1869, administrator de bonis non of the estate of plaintiff’s intestate, and con
It appears that the defendant claims title to the lands by a conveyance from the widow, made in March, 1879. Although he may have rented the lands from the widow, and under such tenancy went into possession, and occupied them while he was administrator, in a suit against him by a succeeding legal representative of the estate, to recover possession of the lands, he will not be permitted to set up against such representative adverse possession during the time he was such administrator. He can not, as an individual, hold adversely to himself as the legal representative of the estate.
As, on the undisputed facts, the defense is insufficient to overcome the case made by the plaintiff, the court would liave been authorized to give the general charge in favor of the plaintiff. When such is tire case, we will not inquire whether the court may or may not have erred in the rulings as to the admissibility of evidence, which could not have affected the result. For such errors there can be no reversal. — Donley v. Camp, 22 Ala. 659 ; McTyer v. McDowell, 36 Ala. 39 ; Leonard v. Storrs, 31 Ala. 488.
Affirmed.