14 Ala. 295 | Ala. | 1848
It is contended however, that the plaintiff in error waived such proof, by permitting the orphans’ court to render a final decree allowing the account against him, by his default. We do not consider that the decree spoken of was final, as respects the interest of the respective distributees. It appears that the court having failed, after repeated efforts, to procure the attendance of the administrator, proceeded to state an account according to the act of 1843, (Dig. 230, § 48,) charging the plaintiff in error with the sum of $1,776 76, and crediting him with judge’s and clerk’s fees, $13 89, and it was then ordered, that a citation issue, requiring the administrator to appear at the nest term, and file his accounts and vouchers, or “the account so stated would be reported for allowance, and settled as required by law,” &c. At the February term, 1845, the complainants were allowed to be made parties, in the absence of the administrator, and without notice to him, upon the petition of their attorney, an alias citation was ordered to issue to the administrator to file his accounts, &c.; no citation appears in the record, but at the April term, 1845, the administrator (as the order recites,) having been cited to file his accounts, &c., and having failed to do so, it was ordered and decreed by the court, that the account thus stated by the judge, and on file in the court, be reported for allowance by the court on the third Saturday of June next thereafter, and publication for forty days was ordered to be made in the Gazette, for all persons interested to come forward and contest the same. The cause having been continued until the July berm, ’45 of the orphans’ court, the complainants in the bill, “ claiming to be the heirs of Peter
The complainants in the bill demurred to this allegation of the administrator, which demurrer was sustained, and the administrator then filed his affidavit, stating that no assets whatever had come to his hands as administrator of said estate, and consequently he had no account to file. That he had paid an account of Druislla Thompson for $90, which he attached, and $13 89, as per the order of the court, and he prayed the court to set aside the proceedings stating the account, &c. This motion was resisted on several grounds, and the judge, without deciding upon it, transferred the cause to the chancery court.
Now it is most obvious, there was no final decree in the orphans’ court, nor any allowance of the account stated by the court, and reported to be allowed on final settlement. The defendants in error moved for its allowance to them, as heirs and distributees, and pending this motion, the jurisdiction of the chancery court attached by reason of the transfer. The account stated by the court was open to exception, upon the final settlement, in the same manner that the report of a master in chancery is; (Douthitt v. Douthitt, 1 Ala. R. 594; Parks v. Stonum, 8 Ib. 756:) and although we regard the showing made by the administrator, who had obstinately stood out in contempt of the authority of the court, and refused not only to file his accounts and vouchers when required, but also to show cause, when cited, against reporting this
The chancellor very properly refused to open the account, but for the error we have noticed, the decree is reversed, and the cause remanded.