Murphy's Heirs v. Murphy's Adm'r

45 Ala. 123 | Ala. | 1871

PETEBS, J.

This is an appeal from a final decree on the settlement and distribution of the estate of Eranciana Murphy, deceased, in the probate court of Montgomery county. Sarah J. Smith, one of the distributees, is the only party that appeals.

Since the appeal reached this court, an affidavit has been filed here on the behalf of the appellee, Murphy, as the administrator of Eranciana Murphy, deceased, showing “ that when the appeal was taken no part of said decrees was unsatisfied, but that the parties in whose favor said decrees were rendered have been fully paid.” And a motion is here made, predicated on said affidavit, to dismiss said appeal. It is undoubtedly competent for this court to entertain such a motion and compel the parties whose decrees have been paid and satisfied to refund the moneys thus paid to them, or to dismiss the appeal. — McCreeliss v. Hinkle, 17 Ala. 459.

But I have looked into the record, and find that the proceedings in the court below are sufficiently regular to be' free from error. The settlement and the decrees thereon distributing the residue of assets remaining in the hands of the administrator were made on the tenth day of May, in the year 1869. At least, I so understand the record. It also appears, that the paper relied on by the appellant as a bill of exceptions, was not allowed and filed in the cause until the twelfth day of May of the same year. This does not appear to have been a bill of exceptions taken during the trial, but it is a recital of some proceedings in the court of a very indefinite character, which, upon motion of the attorneys for the distributees, was admitted to record in this cause. It does not appear that the decrees therein mentioned were for any sums of money or other thing of value, or that they were still unreversed and in full force; nor does it appear upon what evidence the court was called on to allow them to be charged against the administrator. Nor does the bill of exceptions show that all the evidence offered on the trial touching said judgments or decrees was incorporated into the bill of exceptions. In such a case* the presumption is in favor of the regularity of the action of the court below. — Revised Code, §§ 2754, 2755; Griffin v. Bland, 43 Ala. 542, and cases there cited.

Therefore, as no injury can accrue to the appellant or to the appellee by such a practice, it will be held that the receipt of the moneys due upon the decrees appealed from, and the allowance of their satisfaction in consequence of their payment in full before the appeal, is a waiver of all errors, unless the moneys thus received are returned or tendered to the. appellee before proceeding to assign errors here in this court, and the appeal will be dismissed. In such a case, the appellant will not be permitted to hold on to the money and the errors too.

Let the appeal be dismissed, at the costs of Sarah J. Smith and her sureties on her appeal bond, in this court and in the court below.