Stout, Ingoldsby & Co. v. Ward , 10 Ala. 628 ( 1846 )

GOLDTH WAITE, J.

We shall decline to consider some of the questions presented by the assignment of errors, because the writ of error is not the remedy for the plaintiff in the present condition of the cause. It appears his claim was rejected by the court at the final settlement, and therefore he is not a party in any manner to the decree.

In Cawthorne v. Weisinger, 6 Ala. Rep. 714, we held, a writ of error could be prosecuted only by the parties to the decree, and that the remedy of a creditor, whose claim is rejected, is by certiorari from the circuit court. To the same effect is Graham v. Abercrombie, 8 Ib. 552, where the same doctrine was held with reference to one claiming a right as distributee. Under the influence of these decisions, the writ of error must be dismissed, and it may not be unimportant to consider if a certiorari ever would be of any avail, as no exception was taken by the creditor to the action of the court rejecting his claim.

Writ of error dismissed.