117 Ala. 499 | Ala. | 1897
This was a statutory real action originally instituted by James W. Clark, against appellants in the year 1890 in the circuit court of Coffee county, to recover certain lands situated in said county together with damages for their detention. The principal question involved in the appeal is, whether the action, which upon the death of the original plaintiff, had been revived in the name of the administrator of his estate appointed by the probate court of the county in which the land is situated, can, upon the resignation of such administrator, be revived and prosecuted in the ■name of an administrator subsequently appointed by the probate court of another county of which the de
The jurisdiction of the probate courts of the subject matter of the grant of administration is derived from the constitution and not from the statutes. The latter merely designate the particular cases in which the courts have authority to grant administration in their respective counties. Hence, in this respect the jurisdiction of these courts is original, unlimited and general, and being such, their orders and decrees granting administration are entitled to the same presumptions, when collaterally assailed, as are extended to the decrees of other courts of general and unlimited jurisdiction. Whatever within the jurisdiction has been done will be presumed rightfully done until the contrary is shown, and facts necessary to give the court jurisdiction to grant the administration, and which must have been ascertained by the court to exist, will be conclusively presumed, on collateral attack, to have been ascertained,
But notwithstanding the cause was improperly revived, it was not error to refuse to strike' the cause from the docket. Section 2603, Code of 1886, provides that upon the death or other disability of the plaintiff or de-. fendant, if the cause of action survive, the action “must, on motion, within eighteen months thereafter be revived in the name of or against the legal representative of the deceased, his successor or party in interest.” This statute authorizes a revivor in the name of the successor in interest, or in the right to sue, of the person whose death or disabiliby made necessary the revivor, and the action may be revived within eighteen months. from the occurrence of the event which renders it necessary to revive, whether such event was the death or disability of the original party, or of one in whose name the action had previously been revived. — Brown v. Tutwiler, 61 Ala. 372. The immediate event which made it necessary to revive the present action was the disability of the administrator, caused by his resignation, and not the death of the original plaintiff, and less than eighteen months having elapsed since the occurrence of that event, although a longer period had elapsed since the death of Clark, the motion to revive was .within time to prevent the abatement of the action. Upon motion an order should have been entered reviving the cause in the name.'of the administrator de bonis non when, made known. Section 2265 (Code of 1896,. § 333) has reference only to actions commenced by the executor or administrator, and can not, therefore, apply in this case.
Many of the other assignments of error. involve questions - which were considered and determined on the former appeal of .this case. — Beasley v. Clarke, 102 Ala. 254. The possession of land which may ripen into a title inust be adverse and under a claim of right, not
' The judgment of the lower court is reversed and the cause remanded.