Koger v. Franklin, 79 Ala. 505

79 Ala. 505 | Ala. | 1885

SOMERYILLE, J.

Where letters of administration on an estate have been granted irregularly, or improvidently, the Probate Court has the inherent power to revoke them, either ex mero motu, or on application duly made by any party in interest.—Watson v. Glover, 77 Ala. 323; Broughton v. Bradley, 34 Ala. 694; Curtis v. Williams, 33 Ala. 570.

The letters of administration sought to be revoked in this case were granted by the probate judge of DeKalb county to the appellee, who is shown by the evidence to be his son. It is insisted that the grant is voidable, if not absolutely void, and that it should have been revoked by the register in chancery, acting under the statute, pro hae vice, as probate judge, in view of the latter’s disqualification to act in the premises.

The Code expressly provides, that no judge of any court “must sit in any cause or proceeding in which he is interested, or related to either party within the fourth degree of consanguinity or affinity, or in which he has been of counsel, without the consent of the parties entered of record, or put in writing if the court is not of record.” — Code, 1876, § 540 ; Const. 1875, Art. YI, § 18.

In the earlier decisions of this court it was held, that the action of any judge in a matter where he was interested, other than orders which are merely formal, was eoram non judice, and therefore absolutely void, so as to be assailable on collateral attack.—State v. Casteberry, 23 Ala. 85; Wilson v. Wilson, 36 Ala. 655. In the later decisions, however, it is held that such action is voidable only, and not strictly void.—Hine v. Hussey, 45 Ala. 496; Hayes v. Collier, 47 Ala. 726. In Heydenfeldt v. Towns, 27 Ala. 423, a questionable distinction is made between cases where a judge is rendered incompetent by statutory inhibition, and those where he is disqualified because of interest under the rules of the common law. In the former, his action is said to be void, and in, the latter only voidable.—Freeman on Judg. (3d Ed.) §§ 144-146. In Plowman v. Henderson, 59 Ala. 559, the probate judge, as in the present case, had appointed his son to be administrator of an estate ; and the effort was made by a surety on the administrator’s bond, against whom a judgment had been rendered, to assail the appointment collaterally as void. It was held that the action of the judge was manifestly improper, but was not void. It was observed, that “the judge stripped himself, by the appointment, of jurisdiction of every proceeding in the course of the administration which could be regarded as adversary, and not merely formal. It is not contemplated by the law,” said Brickell, C. J., “that a judge shall, of his mere volition, thus divest himself of power and duty.”

In this case we hold, that the grant of the letters of administration to the appellee was a voidable act, not only improper but erroneous, and that it should have been revoked on motion of the appellants, who are shown to be parties in interest, whose rights are liable to be prejudiced by the disqualification of the probate judge to sit in all matters pertaining to the settlement of the estate, other than those which are merely formal.

The judgment is reversed, and a judgment will be entered in this court revoking the letters, and setting aside- the order of the court appointing the appellee administrator of the estate of Elijah Bouldin, deceased. The costs of this appeal will be taxed against the appellee.