| Ala. | Jun 30, 1908
Rehearing
Upon a reconsideration of this case, the majority of the court are of the opinion that the appeal lies, and that the application for a rehearing should he granted, and the judgment of dismissal of the appeal heretofore rendered set aside. The writer is of a contrary view, hut thinks the former opinion should be modified as to what was said in regard to* the decree of sale being interlocutory and not final. We were led into what was there said by expressions contained in the cited cases of Bland v. Bowie, 53 Ala. 152" court="Ala." date_filed="1875-06-15" href="https://app.midpage.ai/document/bland-v-bowie-6509112?utm_source=webapp" opinion_id="6509112">53 Ala. 152, and McQueen v. Grigsby, 152 Ala. 656" court="Ala." date_filed="1907-11-21" href="https://app.midpage.ai/document/mcqueen-v-grigsby-7363051?utm_source=webapp" opinion_id="7363051">152 Ala. 656, 44 South. 961. While we did not say in our former opinion that a decree of sale was nonappealable before a sale and confirmation under it, yet what was said might possibly be open to such construction. We now take occasion to correct such an intimation or inference by declaring that an appeal will lie from a decree of sale of the probate court before or after a sale and confirmation under the decree. This principle is sustained by the authorities cited in brief of counsel for appellant.
But that is not the question here. The appeal in this case is not taken from the decree of sale, but from an order or decree of the probate court setting aside and annulling the decree of sale, and made three years after the rendition of the decree. If the decree of sale was valid, and not void, and such is the contention of the appellant, then the order annulling it, made three years after its rendition, was absolutely void. We have repeatedly ruled that a void judgment or decree will not support an appeal. Such was the case of Gunter v. Mason, 125 Ala. 644" court="Ala." date_filed="1899-11-15" href="https://app.midpage.ai/document/gunter-v-mason-6518538?utm_source=webapp" opinion_id="6518538">125 Ala. 644, 27 South. 843, on appeal from a judgment of the circuit court. The appeal was dismissed because of a void judgment. So, in the case of Adams v.
We have been cited by counsel for appellant to the cases of Stevenson v. Murray, 87 Ala. 443, 6 South. 301, Abernathy v. O’Reilly, 90 Ala. 496, 7 South. 919, and Cotton v. Holloway, 96 Ala. 546, 12 South. 172, where appeals from similar orders to the one in question-were entertained by this court. The appeal in the first-mentioned case was taken from an order just like the one here'; but the point was not made in that case, and the question was not considered. The same may be said of the case of Cotton v. Holloway. In the other case cited — Abernathy v. O’Reilly — the motion to vacate the decree of sale was denied. The report of-the case does not disclose how the appeal was taken. The. decree of sale was not set aside, and it was sufficient to support an appeal. The question we have here, however, was not considered in that case. We do not think those cases can be regarded as authority against the proposition that a void order or- decree will not support an appeal. The appellant not only concedes, but affirms, that the decree of sale, which was annulled and vacated by the order here appealed from, was a valid, and not- a void, decree. The appellant’s assignment of error on the record, which constitutes in pleading his complaint in this court- as follows: “The probate court erred in ren
The majority of the court hold that we should entertain the appeal to ascertain whether the decree of sale of August 2, 1904, was or was not a valid decree; that is to say, whether or not an asserted fact in appellant’s complaint (assignment of error) is true, and only upon the truth of which could the appellant take anything by his appeal, provided an appeal would lie from such an order. If the decree of August 2, 1904, was a valid decree, then as we have already said, the order of October 14,1907, was void. We apprehend that no one will deny this proposition. If, on the other hand, the decree of August 2, 1904, was void for want of jurisdiction in the probate court to render the same, then the order of October 14, 1907, annulling and vacating said decree, was properly entered, and the appellant could take nothing by his appeal, since his only complaint here is that the making of said order was error, and an affirmance would necessarily follow, provided an appeal would lie from such order.
But will an appeal lie in such a case? If the order vacating the decree was properly made, for the reason that the decree was void, then the effect of the order was to leave the cause a pending cause, just precisely as it stood in the probate court before the void decree of sale was entered. It Avas in no sense final. It determined nothing in the cause, and Avas, therefore, essentially an interlocutory order, from which the statute makes no provision for an appeal to this court. The jurisdiction of this court is appellate, and cannot be acquired, except as authorized by statute. The conclusion of the majority
Justice Mayfield concurs in the foregoing views of the writer.
Entertaining the appeal in accordance with the views to the majority of the court, for the purpose of ascertaining and determining whether the decree of August 2, 1904, was or was not a void decree, for want of jurisdiction in the probate court to render the same — that being the ground upon which the probate court made the subsequent order of October 14, 1907, vacating and annulling said former decree — we reach the conclusion that, while the proceedings leading up to said decree may contain irregularities, yet the decree is not void for want of jurisdiction. While-the petition upon which the decree was predicated was filed in a double aspect — that is to say, for a sale of the land for the payment of debts of the intestate and for a sale for partition and division among the heirs — the petition does contain jurisdictional averments of facts, though perhaps defectively stated; and on the averments contained in the petition, under the authorities cited in brief by counsel for appellant, the court acquired jurisdiction. Mere irregularities in the proceedings, that might have been availed of by appeal, are not sufficient to avoid the decree upon the ground of a want of jurisdiction, and hence could not authorize an annullment of the decree by a subsequent order, after final adjournment of the court, and after the court had lost control over the same by such final adjournment.
Tbe conclusion reached is concurred in by all tbe Justices.
Lead Opinion
The appeal in this case is taken from an order of the probate court annulling and setting aside a decree for the sale of land theretofore rendered by said court. It appears from the record that the former decree of sale was rendered on the application of the administrator filed for that purpose upon two grounds alleged in the petition, viz., for the payment of debts and for division and distribution. The decree of sale was unexecuted, no report of sale having ever been made to or confirmed by the court. The decree as it then stood, when the order annulling it was made and from which this appeal was taken, was interlocutory and not final. Bland v. Bowie, 53 Ala. 152" court="Ala." date_filed="1875-06-15" href="https://app.midpage.ai/document/bland-v-bowie-6509112?utm_source=webapp" opinion_id="6509112">53 Ala. 152-159. In McQueen v. Grigsby, 152 Ala. 656" court="Ala." date_filed="1907-11-21" href="https://app.midpage.ai/document/mcqueen-v-grigsby-7363051?utm_source=webapp" opinion_id="7363051">152 Ala. 656, 659, 44 South. 961, 962, it was said by this court: “In such proceedings the decree of confirmation is the final decree, from which an appeal may be prosecuted, and on which the entire proceeding may he reviewed” — citing 15 Ency. Pl. & Pr. 827; Kellam v. Richards, 56 Ala. 238" court="Ala." date_filed="1876-12-15" href="https://app.midpage.ai/document/kellam-v-richards-6509495?utm_source=webapp" opinion_id="6509495">56 Ala. 238-240; Morring v. Tipton, 126 Ala. 350" court="Ala." date_filed="1899-11-15" href="https://app.midpage.ai/document/morring-v-tipton-6518632?utm_source=webapp" opinion_id="6518632">126 Ala. 350, 28 South. 562. If, then, the decree of sale, before sale and confirmation, is not final, but interlocutory, it logically follows that an order setting aside such decree is interlocutory. The cause is left still pending in the court, to he heard and determined on the petition for sale; the proceedings remaining until final decree in fieri.
The law in regard to appeals from the orders and decrees of the probate court, as found in sections 457 and 458 of the Code of 1896, makes no provision for an appeal from such an' order or decree as that from which the present appeal is prosecuted. It follows, therefore, that the appeal in this case must be dismissed.
Appeal dismissed.