Black's Creditors v. Black's Adm'rs
20 Ala. 401
Ala.
1852
Check Treatment
DARGAN, C. J.

On tbe second Monday in August, A. D. 1848, tbe estate of William Black, deceased, was declared insolvent by tbe Orphans’ Court of Marshall, but without any contest on tbe part of tbe creditors. On tbe eleventh day of August, 1851, such of tbe creditors as bad filed their claims in tbe office of tbe Court of Probate, joined in a writ of error to this court, for tbe purpose of reversing tbe decree of insolvency, and a motion is now made to dismiss tbe writ of error. Previous to tbe act of 1843, tbe mere report of an executor, or an administrator, that tbe estate be represented was insolvent, was sufficient to authorize tbe Orphans’ Court (as it was then called) to take jurisdiction of tbe estate as an insolvent estate, and to administer it as such; and tbe creditors could not prosecute a writ of error to revise any act of tbe court, until a final decree settling tbe estate was rendered. But by tbe act of 1848, tbe creditors have tbe right to come in and contest tbe fact of insolvency, and to make an issue of fact, which shall be tried by a jury. This act also allows other issues to be made up and tried in tbe progress of tbe cause, before the final settlement is complete. By tbe thirteenth section of this act, it is provided that, on tbe trial of any issue directed to be made up and tried under tbe provisions of said act, if either party shall be dissatisfied with any decision ot charge of tbe judge trying tbe same, such party may except to such decision or charge, and tender bis bill' of exceptions, as in trials of suits at common law, and *402may within twelve months thereafter, appeal from or sue out a writ of error to such judgment, as in suits at common law. It is apparent that a writ of error is given by this statute, only when an issue has been made up and tried according to its provisions, and then the writ must be sued out within a year from the time of the trial of such issue; it cannot be issued afterwards. But if no issue has been made up and tried under this act, then no writ of error can be issued under its authority, for the writ is only given when an issue has been tried. The writ of error must then be sustained under other authority than this act, for in the case before us, it was not issued within a year from the rendition of the decree, nor was any issue made up and tried. But independent of this act, no writ of error can be issued until the final decree of settlement; for anterior to its passage, a writ of error would not lie to review the proceedings of the Orphans’ Court, had in reference to an insolvent estate, until the final decree by which the assets were distributed amongst the creditors, and such is still the case, unless the writ can be issued pursuant to the provisions of this act. I will not say whether the writ could have issued to review the decree of insolvency, before the final decree distributing the assets, if the act of 1843 had made no provision for the writ of error. But inasmuch as it has, it is clear to my mind that the Legislature intended that the writ of error should only issue, during the progress of the cause in the Orphans’ Court, in the mode pointed out in the act. We, therefore, must dismiss the writ on two grounds; first, it cannot be issued before the final decree of settlement is rendered, unless an issue has been made up and tried; secondly, it then can issue only within a year from the time such issue has been tried.

Writ of error dismissed.