68 Ala. 141 | Ala. | 1880
When an application to the Court of Probate, by a personal representative, for an order to sell lands for the payment of debts, is contested, it assumes the form, and has the characteristics and properties, of a suit inter partes. The judgment or decree rendered by the court
# While a judgment or decree is conclusive between parties and privies, of the matters in issue and determined, it is not conclusive of matters drawn in controversy collaterally — merely given in evidence to support or controvert the matter directly in issue. — Freeman on Judgments, sections 257-8. The liability of the personal representative for the rents of the lands of the intestate, either during her life, or after her death, may have been matter of controversy on the trial of the application for the sale. The existence of the liability, if shown, was mere evidence of personal assets primarily chargeable with the payment of debts. Of such evidential facts, a judgment or decree is not conclusive. It is too well settled to require the citation of authority, that the conclusiveness of a judgment extends only to the question directly in issue, and not to any incidental or collateral matter, though it may have arisen and been passed upon. The doctrine was clearly stated in the Duchess of Kingston’s case, 2 Smith’s Lead. Cases, 609, that “neither the judgment of a court of concurrent or exclusive jurisdiction is evidence of any matter which came collaterally in question, though
The Court of Probate erred in overruling the demurrer to the replication, as it is termed, by the administrator.
Reversed and remanded.