Powell v. Summers , 17 Ala. 647 ( 1850 )

PARSONS, J.

Summers, as distributee in right of his wife of an estatq of which Powell was the administrator, sued out an execution from the Orphans’ Court of Dale county, for the amount of his distributive share, against Powell as the administrator. The execution bears date the-27-th day of July 1847. It appears by the record that Summers recovered a decree for his distributive share against Powell, but the decree bears date the 13th day of July 1848. Powell moved to quash the execution in the Orphans’ Court, but the Orphans’ Court overruled the motion, and the judgment overruling the motion was affirmed, on error, in the Circuit Court of Dale county. The question is, was there error in.affirming the judgment of the Orphans’ Court? There is some reason to suppose that the decree, although, dated after the time when the execution bears date, was ' in fact rendered before. Its position in the transcript, which is previous to that of the execution, is the ground of this doubt. But passing this question, there is an error in the execution, for which it should have been quashed. . It1 was returnable to the Orphans’ Court, instead of a regular term of the County Court, which, according to several decisions of this court, is a fatal error. — Little et al. v. Heard et ux. 16 Ala. R. 358, and cases cited.

Let the judgment of the Circuit Court be reversed and the cause remanded.