Hayes v. Collier

47 Ala. 726 | Ala. | 1872

B. E. SAEEOLD, J.-

The record shows that there was •a report by the administrator of the insolvency of the estate, and that upon this report the decree of insolvency was founded. The jurisdiction of the court Laving thus attached, the decree is not void, no matter what mighthave been its fate in a direct proceeding to reverse it. — Heydenfeldt v. Towns, 27 Ala. 423; Hine v. Hussey, 45 Ala. 496. It is not claimed that the decree was rendered at a time when no court was authorized to be held.

The relationship of the judge to one of the creditors can not affect the filing and verification of his claims. The 'acts to be done by the judge are purely ministerial, involving no discretion whatever.— Underhill v. Tennis, 9 Paige, 202; Heydenfeldt v. Towns, 27 Ala. 423.

In addition to this, section 635 of the Eevised Code should not be construed to render void the judgment of a court because the presiding judge was related to either party, or interested in the cause, or had been of counsel. It was not so by. the common law, and this we regard as high authority. A system of law, the accretion of ages in practical application to human affairs, and so comprehensive as to furnish a remedy for the protection of every right, and the redress of every wrong, may well indicate the construction of a statute the terms of which do not forbid the interpretation. The statute referred to doésnot declare void the acts of the judge, but expressly authorizes them, .with the consent ©f the parties entered of record. If the omission of this entry is to annul the judgment, then it may be set aside indefinitely afterwards, notwithstanding the actual consent of the parties, by strangers whom its operation may impede. If parol evidence of such disability is admissible, then the judgment, and the rights accrued under it, become ever liable to defeat.

[Note by Reporter. — The opinion in this case was delivered at the January term, 1871. By some means it was filed away in the record in the case of Tanner, Ádm’r, v. Hayes, et al., decided at the January term, 1872, and reported on pages 722-6 of this volume, which involved the question of the amendment nune pro tune of the decree of insolvency sought to be- set aside in this case ; hence it is that this case was not reported earlier.]

The judgment is reversed and the cause remanded.