Whitten v. Graves, 40 Ala. 578

Whitten v. Graves

40 Ala. 578 | Ala. | 1867

BYRD, J.

1. The appellant, C. H. Whitten, filed a petition, which is.set out in full in the bill of exceptions; and it appears from the bill that the appellee interposed a demurrer to the petition, -and that the court sustained the demurrer, and overruled the petition. In the absence of grounds of demurrer assigned, we must presume that some were assigned specially, in order to sustain the ruling of the court below. — Newsom v. Huey, 36 Ala. 37.

The next question is, whether we are bound to look into the petition, to see if any special ground could have been assigned, which should have been sustained. A party complaining of the action of an inferior court, must affirmatively show error. If a demurrer is sustained to the pleading of such party, and the pleading is perfect, then error so appears. As the husband alone filed the petition in his own name, this was a defect which could have been reached by a demurrer ; and therefore we must presume that the court sustained it on that ground. — 36 Ala. 37; Pickens v. Oliver, 29 Ala. 528.

3. A motion was made to enter a decree nunc pro tunc, which was heard on a different day from the demurrer to the petition. The bill of exceptions shows that the decree was ordered to be entered, and the order is set out,, which recites that it appeared “ to the satisfaction of the court, from the records of this court, and from papers on file relating to the settlement ”, &c. The bill of exceptions does not show what were the contents of the records, or papers *583on file; and we must intend, in tbe absence of their contents, that the court was authorized therefrom to make the order.

4. The decree, upon its face, is regular, and is a final decree; and it clearly appears that the guardian had delivered to the husband all the property of his wife which had been in the possession of the guardian. The order in the decree, that the guardian “retain the balance due him out of any assets in his hands belonging” to his ward, has no force or validity further than a certificate of a balance due the guardian ; it appearing from the decree that the guardian had no assets of his ward in his hands.

There is no error, and the decree must be affirmed.

Judge, J., not sitting, being disqualified by relationship to one of the parties.