112 Ala. 386 | Ala. | 1895
There are two of these appeals ; one from a judgment of the circuit court, overruling a motion to quash an execution issued from the probate court of Cleburne county and dismissing the application for a writ of certiorari which had been previously granted. The other appeal is direct from the judgment of the probate court overruling the application of appellants to quash the execution, and to set aside and annul the judgment, upon which the execution issued.
The decróe or judgment in the probate court, upon which the execution issued, bears date May 10th, 1893. The execution was levied upon the property of appellants, who filed their application and motion before W. F. Alsabrook, as special probate judge, by whom the decree had been rendered, praying that the execution be quashed and decree set aside and annulled. The motion to quash the execution was overruled and the application
Appellee’s motion to dismiss the appeals presents the question, whether, conceding that appellant had the right to resort to the common law writ of certiorari as a proper remedy, he can present the same questions for review both by a direct appeal to this court from the judgment of the probate court, and by petition for a certiorari to the circuit court. Upon this question we hold that it is in accordance with the spirit of the statute providing for appeals, as well as with our decisions, that in civil actions, when the remedy by appeal affords full and complete redress, certiorari will not lie, and the party must resort to the remedy afforded by appeal. That when the remedy by appeal is inadequate, then the common law writ of certiorari may be resorted to. — Independent Pub. Co. v. American Press Association, 102 Ala. 475, and citations. Both proceedings, the one by certiorari and the other by appeal, rest substantially upon the same facts. Independent of these principles, we are of opinion that neither appeal, the one from the circuit court, nor that from the probate court, can be sustained, when considered upon their merits.
The facts may be briefly stated as follows : On the 18th of June, 1877, (as appears from appellants’ abstract', p. 3), W. Y. Lawler, who was the general administrator of the county, was appointed administrator de bonis non of the estate of Samuel Hunter, deceased, '«those estate had been declared insolvent, and appellants were sureties on his bond as such administrator. On the 24th of May, 1888, at the instance of a creditor, the administrator de bonis non, was cited to appear and file his accounts for a final settlement. On 11th of June, 1888, the court, after reciting the fact of service of the citation, proceeded to state an account against him as provided in the statute. An order was made that a copy of the account, with notice to appear and show cause why the account should not be passed and allowed and a final
One of the objections to the proceedings and decree is, that the order of the register making the appointment, does not recite that the person appointed, ‘ ‘was a disinterested person, learned in the law.” This provision of the statute merely defines the qualifications of the person to be appointed, a question which cannot be thus collaterally raised. Another objection is, that there was a discontinuance in the proceedings from 1888 to December, 1892., This contention conflicts with the recital in
Another objection is, that appellants were not securities on the administrator’s bond,. This contention conflicts with the averment of the petition we have quoted from page 3 of the abstract, and is not supported by any evidence.
We must not be understood as holding that the decree in the probate court is even irregular. Clearly it is not void.
If, instead of dismissing either appeal, we consider both upon their respective merits, the judgment in both cases must be affirmed. Our conclusion is, that in the certiorari case, the judgment must be affirmed, and in the appeal case it must be dismissed. Judgment will be rendered accordingly.