44 Ala. 204 | Ala. | 1870
The appellee moves to dismiss this appeal — 1st, on the ground that, under the peculiar circumstances of this case, the probate court had no jurisdiction to entertain these proceedings, and that the remedy is in the chancery, and not in the probate court; 2nd, that there is no final decree, upon which an appeal can be taken ; and, 3d, that the appeal is not shown by the record, and that there is no sufficient security for the costs.
On the first ground, the appellee refers to, and relies upon the case of Hays, Executor, v. Cockrell, Administrator, 41 Ala. 75. Although that case, in all its features, is not like this, the principle there settled, we think, is decisive of this motion, and shows that the appeal must be dismissed.
In that case, Hays was the administrator, de bonis non,
No decree, in such a case, could be, and, in this case, none is rendered for the said party claiming to be sole heir-at-law and distributee of the said deceased ward, nor is any decree rendered against her.
As in contracts, so in judgments and decrees, unless in proceedings in rem, there must be, of necessity, two parties —one party for whom, and another party against whom, the judgment or decree is rendered, and a judgment or decree that is rendered for, and against the same party, as we have seen, is a mere nullity. In this case, as I have said, there is no judgment or decree either for, or against, the appellant; if, therefore, there is any judgment or decree in this case, it must be for the said appellee, as administrator, and against him, as guardian; and as the probate court had no authority — no jurisdiction to render such a judgment or decree, the appeal must be dismissed. It is insisted by appellant, that section 9 of article YI. of the
This entry, certainly, has none of the properties of a final judgment or decree. It merely finds, that a certain sum was in appellee’s hands, as guardian, and which, as administrator, he is directed to retain in his hands, subject to the further order of the court.
It is unnecessary to consider the third ground assigned, to dismiss this appeal — the two we have disposed of, are sufficient for that purpose.
We do not decide that the appellant, as sole distributee of the estate of the deceased ward,-Wm. F. Rogers, can not call the appellee, as administrator, &c., as aforesaid, to a final settlement and distribution of the estate of said ward, in the probate court, or, whether, on such settlement, the administrator, as such administrator, can be charged
We also decide, that there is no final decree in this record, upon which the appellant can sue out an appeal to this court.
Ret the appeal be dismissed, at the costs of the appellant.