Price v. Simmons, 13 Ala. 749

Price v. Simmons

13 Ala. 749 | Ala. | 1848

■DARGAN, J.

The plaintiff in error, cannot assign for error, on this record, the judgment of the orphans’ court removing him from office without notice. This was done in *7511842, and is a separate and distinct judgment, from the decree of final settlement, and to reverse which this writ of error was issued. The judgment of the orphans’ court, if even erroneous, cannot now be reviewed on' error, for the plaintiff was administrator by virtue of his office as sheriff, and when his office expired, his letters of administration ceased, or his authority as administrator ceased with his office. ‘ Besides, the statute of limitations is a bar to a writ of error,, on the decree of the orphans’ court, rendered 6th September,. 1842 : even if this decree was erroneous for want of notice, the consideration of which we waive, the plaintiff cannot review it. But the decree of the orphans’ court, rendered January, 1845, on the final settlement in favor of Simmons, as administrator de bonis non, against the plaintiff in error, and awarding execution thereon, is erroneous.

In the case of Willis v. Willis, 9 Ala. Rep. 721, this court, after a full review of the statutes, determine, that if an administrator be removed, and an administrator de bonis non be appointed, and final settlement is made with the administrator in chief, and a decree is rendered against him in favor of the administrator de bonis non, and execution thereon is awarded, that such decree is erroneous. That it is not authorized by any statute, and cannot be supported. This decision was made at the January term, 1846, and on the 4th of February, 1846, to supply what the legislature supposed was a defect in the law, in this respect, a statute was passed, authorizing the orphans’ court, on a final settlement with the administrator in chief, to render a decree against him, either in favor of the administrator de bonis non, or in favor of the heirs or distributees, as the court may see fit. The decree in this case being rendered before the passage of this statute, was erroneous at the time of its rendition, and this act does not relieve it of the error, and consequently, the decree is reversed.

Chilton, .T., not sitting.