5 Port. 223 | Ala. | 1837
This cause is brought up by
On the thirteenth of the same month, a citation was issued, and on the fifth of February, executed by the sheriiF of Talladega on the plaintiff; by which he was required to appear and settle his guardianship accounts, before the Judge of the Orphans’ Court of Madison, on the second Monday of that month. Mo proceedings seem to have been had on the citation; but the defendant on the eighth day of March following, filed with the clerk of the Court, the accounts and vouchers touching his, said guardianship, for final settlement.
Whereupon the Court made an order, directing that publication be made for forty days, in some newspaper published in Huntsville, requiring all persons interested, to appear before the Judge of that Court, on the second Monday in May thereafter, at the court house of the county, and show cause why final settlement should not be made. On this latter day, the record shews that a final settlement was made, and the accounts of the plaintiff, touching his guardianship, stated and recorded. In the decree which follows the statement of the account, the Judge recites that he finds the accounts as stated to be correct — and further, that
“It is therefore decreed by the Court, that the said George M’Leod, pay over unto the said George Mason, the said sum of four thousand, six. hundred and eighteen dollars and fifteen cents, the balance due said Adaline, upon a final settlement of his guardianship accounts. .
(Signed by the Judge) john c. Thompson.”
Afterwards, but on the same day, the following order was made:
“On motion of Samuel Peete, attorney for George Mason, guardian of Adaline T. Heath, infant child of Joseph M. Heath, deceased,t — it is considered by the Court, that said guardian recover of, and have .execution against George M’Leod, late guardian of said Adaline T. Heath, for the sum of four thousand, six hundred and eighteen dollars and fifteen cents, the balance due from the said George M’Le-.od, this day, on final settlement of his guardianship of said infant, made and ordered to be recorded, &c”
We consider it unnecessary to inquire in regard to the sufficiency of the citation, and the discontinuance of the proceeding commenced by it, inasmuch as it seems to have been abandoned in the Orphans’ Court. After the citation had spent its force, the plaintiff voluntarily come into Court, and filed his accounts and vouchers, for the purpose of obtaining a settlement of his late guardianship.— This step by the plaintiff, without a summons, or other process of th.e Court} was fully authorised by Law.
The case of Ripitoe vs Hall,
It is argued for the plaintiff, that it is not shewn that the defendant was a party to the settlement, nor from what Court he derived the guardianship of his ward'. In respect to the first branch of the proposition, it may be remarked, that it was not necessary that the defendant should have been made a party to the proceedings in the Orphans’ Court.— It has already been observed that it was competent for the plaintiff to file his accounts, and ask their settlement, in the manner he did; and upon publication being made, the defendant might have appeared, had he desired; but there was no necessity for his being made a party, or even interfering in any manner in the settlement. And it is alike
The record, it is true, does not shew that publication was made as directed by the order of the Court, requiring persons interested, to shew cause against the settlement; yet this objection cannot avail the plaintiff. Publication was not intended to give him notice. The settlement was made at his motion, and upon vouchers furnished by himself. But it was made for the benefit of the ward, and if her guardian is contended to abide by the settlement, the plaintiff cannot take from him that privilege.
In the last place, it is objected that the decree, is in favor of the defendant, instead of his ward. That part of the action of the Court, which may be technically called the decree, is proper enough, and would have authorised an execution to issue in the name of the ward by her guardian, without any particular direction by the Court. But the subsequent order directs, “that said guardian recover of, and have execution &c.” The words, “said guardian,” re-fering to the defendant, whose name is used in the preceding part of it. We look upon this order for an execution, as wholly unnecessary; yet we are not permitted to disregard it, for it was made at the same time, and by the same authority, that the decree was, and .controls it, by confining the right to sue out execution in his own name, to the guardian.
Had the decree have stopped, with the signature of the Judge, we have said it would be unobjectionable, and quite sufficient for all purposes; but being controlled by what follows, it must be reversed. And as there is enough appearing on the record, might be here rendered, but from the consideration/that we might ourselves, mistake the proper parties; as the guardianship may have been changed, or the ward may have attained her majority.
The cause is therefore remanded.
Aik. Dig. 82. §27.