21 Ala. 337 | Ala. | 1852
— ¥m. 0. Price was administrator, with the will annexed, of Wm. Burns. He was succeeded in his administration. by James L. Simmons, as administrator de bonis non, by whom he was cited before the Orphans’ Court of Benton to make final settlement; and upon such final settlement before said Orphans’ Court, Price was found to have in his hands, of the funds of the estate, the sum of nineteen hundred and eighty-two dollars and sixty-nine cents, ($1982 T<yv) after deducting all just credits and his commissions. Eor this sum, there was a decree rendered against him by the Orphans’ Court, in favor of said Simmons, administrator de bonis non, in January, 1845. Upon this decree there was an execution issued against Price, which was duly returned “ nulla bona." An execution then issued against said Price and his securities on his official bond as sheriff, (he had been administrator in virtue of his office as sheriff,) of whom Thomas E. Williams was one, and the amount of the execution was collected out of said Williams, and after being so collected, was paid over by Simmons, the administrator de bonis non, to the legatees of the testator, Wm. Burns.
After all this, the decree of the Orphans’ Court in favor of Simmons, administrator de bonis non, against Price, administrator, was taken, by writ of error, to the Supreme Court, where it was reversed. 13 Ala. 749. Since then, Williams has sued Simmons in the Circuit Court of Tallapoosa, to recover back the money paid by him on the execution which issued against him as a security of Price on the decree of the Orphans’ Court of 1845, which has been reversed, and this action was pending at the time of this trial below in the Probate Court.
The foregoing state of facts was shown to exist, upon a new citation issued at the instance of Simmons, administrator de bonis non, against Price, as administrator of Burns, to make final settlement, on the 22nd day of August, 1850, and brought to a hearing at the November term of said Probate Court, 1850.
Upon this proof, the Probate Court decreed anew in favor
The plaintiff iu error, Price, insisted before the Probate Court, that the payment of the money on the former decree by Williams, and the appropriation of it by Simmons to the payment of the legatees under the will of Burns, ought to be regarded, in law, as a satisfaction of the sum now claimed of him by Simmons.
There is nothing to protect Simmons from a recovery by Williams, in his action in the Circuit Court of Tallapoosa, for the money paid to him by Williams under the decree of the Orphans’ Court against Price, which was afterwards reversed. A judgment that has been reversed, is regarded as a nullity. It is the same as if there had been no judgment. Dupuy v. Roebuck, 7 Ala. 484; Simmons v. Price, 18 ib. 405.
If Williams can recover this money back from Simmons, and Price can claim the advantage of the same money in satisfaction of the demand against him, because Simmons has paid the legatees of Burns with it, the result follows, that Simmons is made to pay the legatees out of his own pocket, and Price and Williams go clear of their just liabilities. Such a consequence is too manifestly unjust to be tolerated for a moment, and satisfactorily shows the decision of the court, refusing to allow the same, to be correct.
As long as Williams persisted in his action against Simmons to recover back the money he paid on the decree which was reversed, Simmons should be allowed to pursue afresh his demand against Price in the Probate Court, and that court properly decided to take no notice of the payment of the legados oy Simmons.
There is no error in the decree of the Probate Court, and tbe same is affirmed.
