Summersett v. Summersett's Adm'r

40 Ala. 596 | Ala. | 1867

JUDGE, J.-

1. The probate court transcended its authority in allowing the amendment of the order of sale, as is shown by the bill of exceptions. A record can only be amended, nunc fro tunc, by some matter of record, or mat■ter quasi of record. — Shepherd’s Digest, 396, § 32; Harris v. Martin, 39 Ala. 556.

2. The judge of probate, after appointing a day for the hearing of an application to sell lands, is required to issue a citation to the heirs or devisees, of full age, residing in this State, notifying them of the application, and of the day appointed for hearing the same; which citation must be served on such heirs or devisees ten days before the day appointed for the hearing. — Code, § 1869. In this case, it does not appear that the heirs of full age, residing in this State, received the notice required by the section of the Code above cited, nor that they were present at the hearing, either in person or by attorney. The order of sale recites, that proof was made that all the heirs “ had notice strictly and in all respects in accordance with the order of the court made and entered in the proceeding, on the 14th of November, 1865.” But the only semblance of an order in the decree of that date, so far as,the record discloses, is the following: “ Filed in office, 14th day of November, 1865. First Monday in January, 1866, set for hearing. Post notices.” It therefore results that the order of sale is, of itself, a nullity.- — Acts 1853-4, p. 55.

3. Beversing for the error first above mentioned, it will be in the power of the probate court, to vacate on application the void order of sale, so that the parties may commence de novo, if a sale of the land be necessary.

This view of the case renders it unnecessary to consider any of the other questions presented by the record. Let the order confirming the sale be reversed, and the cause remanded.