Crothers v. Ross's Distributees , 15 Ala. 800 ( 1849 )

COLLIER, C. J.

The plaintiff, by his petition, prayed the orphans’ court to annul, or modify, its decree, rendered at a previous “return day,” or “stated session,” of that court, by which his accounts as administrator, were finally settled, and the estate of the intestate distributed, upon special allegations, that great injustice had been done by that settlement. Conceding that it was competent for the court to have entertained the petition after the decree was perfected, the court adjourned and execution issued, and it by no means follows, that its dismissal, even if it was established » by proof, is revisable on error. “ The granting, or refusing, a new trial, is a matter within the discretion of the court trying the cause; and however decided, cannot be revised on appeal or writ of error. Nor can the refusal to decide upon such a motion, be thus made the ground of objection to a judgment, in other respects regular; for as the appellate court cannot examine into its merits, and determine whether it should have been granted, it cannot undertake to say, that the party complaining has been prejudiced by refusing to decide upon his application for a new trial.” In the latter case, “ a mandamus is the appropriate remedy to compel the judge to make such a decision, as in his judgment is proper and legal.” Bridges and Beers v. Miller, 3 Ala. Rep. 746.

But in this case, the petition came too late, and when the orphans’ court could not grant its prayer. “ It is not permissible for a court to avoid its judgment or decree, after the expiration of the term at which it was rendered, unless it be in conformity to some legislative provision, or a practice so often recognized as to establish it. We are aware of no statute which confers such a power upon the orphans’ court, and as that court does not proceed according to the course of chancery, it cannot exercise a modifying, or annulling power over its final decrees, by any proceeding analogous to a bill of review.” Slatter and wife v. Glover, adm’r, 14 Ala. Rep. 648. The practice in the courts sitting at. Westminster, in entertaining rules for new trials, furnish no analogy to guide us. These courts are influenced by the control they exercise over trials at nisi prius, and by rules peculiar to themselves. Consequently, the citation of the plaintiff’s counsel, from 2 Man. & Grang. Rep. 641, is altogether inapplicable. The decision of the orphans’ court, we have seen, cannot be revised, and the writ of error is therefore dismissed.