Boynton v. Nelson, 46 Ala. 501

46 Ala. 501 | Ala. | 1871

B. E. SAFFOLD, J.

This case was brought to this court by certiorari, under the following circumstances : On the 15th of February, 1869, W. N. Boynton, the executor of the will of Alanson Saltmarsh, was cited by the probate judge to show cause, on the 8th of March, why he should not be required to give an additional bond. At that time, he was ordered to give the bond by the 12th of April. From this last date the cause was successively continued to the 24th of May, when no action at all was taken. At a special term held on the 17th of August, an order was made removing Boynton.

While this proceeding was pending, another was progressing to require the executor to make a settlement of his administration. It commenced on the 25th of January, 1869, by an order to him to file his accounts for settlement by the 8th of February. It was successively continued to the 24th of May, when the accounts were filed and set for hearing on the 26th of June. The cause was continued to the 2d, 17th, 24th and 31st of August, and then to the 13th of September, when no action was taken.

On the 15th of September, Boynton applied to the court by petition to set aside the order removing him for the reasons therein stated. The hearing was appointed for the 22d of September, and was continued to the 6th and 19th of October, and the 5th and 10th of November, when it was overruled.

Nelson was appointed special administrator on the 18th of August, the day after Boynton was removed.

Upon the overruling of his petition, Boynton applied to one of the justices of this court for a certiorari to, review the action of the probate court removing hnq from hjs, executorship, on the ground, mainly, that it was void because the order of removal was not made at a regular term of the court; but at a special term to which the cause had not been adjourned, ab.d the time in which an appeal might have been taken had elapsed before he became informed of such order.

The proposition is undeniable that the acts of a court held at a time and place not authorized by law are absolutely void. — Bouv. Law Diet., Judgment. Wasthe probate court authorized to make the order which it did on the 17th of August, 1869 ? Its powers of holding courts are appointed by section 795 of the Revised Code. “A court of probate must be held at the court-house of each county on the second Monday in each month, and the judges may hold special or adjourned terms, at any time whenever necessary for any special purpose; but such courts must at all times be considered as open, except on Sundays, with authority to do all things needful in relation to granting letters testamentary, of administration, or guardianship, and all matters appertaining thereto; binding out apprentices, and making all other necessary orders, which are grantable as a matter of course.”

In aid of the validity of judgments of courts of general jurisdiction, which the probate court is, many intendments or presumptions are indulged. For instance, the acts of a court will be presumed to have been made at a proper term, unless the reverse appear; and in collateral, or even direct assaults, when the purpose is to have them declared void, the record itself must exhibit the error. — Duval's Heirs v. McLoskey, 1 Ala. 733. But when the record shows facts which are inconsistent with the validity of the judgment, the jurisdiction can not be presumed from its mere exercise. Again, from the service of process until the final judgment, the parties are presumed to be in court, and need no further notice of orders taken in the cause. — Harrison v. Meadows, 41 Ala. 278. But these orders must be such as the court may legally grant at the time. If they appear from the record to be otherwise they' are invalid.

Section 2090, Revised Code, adds the probate judge to the list of those who may require an additional bond of an executor or administrator on proof of one or more of the grounds specified in section 2018. These proofs aro to be heard by the court on the day specified in the citation to the executor, or administrator, or any day thereafter to which the hearing may be continued. — § 2024. If the bond be required, an order to that effect must be made, allowing such time as the court may think reasonable. — § 2027. If it be not given within the time prescribed, the executor or administrator must be removed by the court, and his letters revoked. — §§ 2028-29.

I imagine no appeal can be taken from the order requiring the additional bond, because none is expressly given, and it is not a final order. The party can not be said to be injured, unless he is removed. Besides, if he give the bond, his liability is not thereby increased beyond what it should be, and if he fail to do so he has his remedy on his appeal from the order removing him.

It is plain from § 2024, above cited, that the order requiring the bond can not be made at any special term different from that specified in the citation, or ■ that to which the cause may be continued. It is claimed, however, in this case, that the order of removal, after the failure to give the bond at the time appointed, was grantable as a matter of course on any day except Sunday.

The authorities cited in support of this proposition are sections 2028, 2029, which say the letters must be revoked, and Arrington v. Roach, 42 Ala. 155, to the effect that “ All orders which are made without notice, and are necessary, are to be considered as grantable, as matters of course.” These authorities cannot be said to conclude in this respect a solemn decree divesting a party of a right, and an interest in property, acquired by the act of another, from which he may appeal directly, and which was not rendered in response to any motion or application made by him. The removal of an executor without notice is void. — Goodwin, ex’r, v. Hooper, January term, 1870.

It was important to this executor that he should have had notice, actual or constructive, of the time when the order removing him was made, because the amount of the new bond requited of him does not appear to have been fixed, and perhaps on that may have depended his ability to give it. Besides, his right of appeal continued only for five days. In both of the eases, Harrison v. Meadows, 41 Ala. 278, and Allman v. Owen, 31 Ala. 167, cited by the appellee in support of his proposition, much stress was laid, upon the fact that Boynton had constructive notice,, that the- assignments of error were not sustained by the record. In the first there, was no entry, or, other thing of record,, showing that the decree was rendered at a special termand, therefore,, it was presumed to have been rendered at a regular term. In the other, the decree alleged ifco have been rendered in vacation, was shown by the record to have been rendered when a regular term ought to have been held. The plain inference from these cases is that the decrees would have been held void if the allegations had been properly supported.

No aid to the presumption of notice can be derived from the fact that the times appointed for the partial settlement coincided twice with those directed for the consideration of the question of removal, to-wit, the 10th and 24th of May, and that this settlement was regularly continued to the 17th of August, when the order of removal was made. Beginning prior to the demand for a new bond, the settlement was continued along with many postponements to intervals only a few days apart from the other, without any allusion at any time, in the one to the other. There was no necessary connection between them, nor did the court or the parties seem to treat them as in any way connected. On the 24th of May, Boynton was present, and filed his accounts, but no action was taken in the other. The settlement at that time was appointed for the 26th of June, and was continued to the 2d and 17th of August, and on to the 13th of September, when it was abandoned, to give place to the final settlement consequent upon the removal.

No. action was taken on the proceeding, in reference to the bond, from the 24th of May until the 17th of August, when, as shown by the record, at a special term held that day, he was formally removed, for failing to comply with the order of the 8th of March, 1869, which had been extended to the 24th of May. This decree not only fails to state that the cause had been continued to this day, but the plain meaning of the recitals is that nothing had been done in the matter since the 24th of May. "We know judicially that a regular term could not commence on that day, and we cannot presume that there was a continuation of such a term, because the record says it was a special term. The decree of removal is, therefore, void, from having been rendered at a special term, to which the cause had not been adjourned or appointed.

We are asked to review the former judgment of this court overruling the motion to dismiss the certiorari. The ground of this request is* that Boynton had the right of appeal from the judgment adverse to his application to set aside the order removing him. It is alleged correctly that this court has frequently entertained appeals brought here under similar circumstances, and the case of Satcher v. Satcher, (41 Ala. 26,) is cited as an instance. In none of these cases does there appear to have been any question made on the right of appeal. Besides, the rule of practice} that no errors will be considered except such as are assigned, this court has been disposed to terminate the litigation by a decision of the merits of a cause, unless the irregularities of practice are sufficiently great to produce confusion.

Hayes v. Cockrell, (41 Ala. 75,) and Garrison v. Burden, (40 Ala. 5_3,) are cases in which the appeals were dismissed at the cost of the appellants, because the judgments appealed from were void, ascertained to be so after a careful consideration of the merits of the causes. In this case the question was one of nullities. If the removal of Boynton is valid, an order setting it aside would be void; and hence, on Nelson’s appeal he would have lost his suit by the establishment of his right. The final judgment, order or decree which will support an appeal, in the contemplation of the statute, is one rendered upon some matter or proceeding in the court upon which a decree may be rendered, and from which either party may appeal if the decision be adverse to him.

While we would not follow the authorities above cited in 40th and 4ist Alabama, so far as to dismiss an appeal taken to reverse a judgment which we decided to be void, we can not subscribe to the doctrine that a review of all the judgments and decrees of the various courts of this State, for an indefinite past time, may be forced on this court through a right of appeal obtained by a mere motion to set them aside made in the lower courts. Certiorari is a common-law writ of review. Its grant is discretionary, and on this account the judge, or court, is enabled to stop on the threshold a proceeding which promises to be unjust and vexatious. While a party who has a right of appeal should be confined to that remedy, his privilege of obtaining a certiorari is not taken away by implication merely. To deny him the latter in a case calling for relief, when the appeal is lost without fault on his part, is a refusal of justice. To enable him to restore his right of appeal, when it may have been lost through his neglect, by a motion to set aside the judgment of which he complains, is to accord him more than his right, to the detriment of the opposite party. From these considerations, we think our former decision was right.

The order of the probate court is reversed, and the cause remanded.