Thompson v. Hunt , 22 Ala. 517 ( 1853 )

GIBBONS, J.'

A motion is made in tbis case to dismiss tbe writ of error, predicated, as appears by brief of counsel, upon tbe case of Price v. Stewart, 16 Ala. 40, and on tbe act of lltb February, 1850. Tbe motion is resisted, on tbe ground 4hat tbe law in tbe case of Price v. Stewart, supra, was wrongly declared, and relying upon tbe case of Savage v. Benham, Adm’r, 11 Ala. 49; and further, that tbe act of 1850 did not repeal tbe act of 1843, and therefore a writ of error lies from a decree of tbe character of tbe one in question, tbe same as it did before tbe passage of tbe act of 1850,

Tbe act of 1843, in speaking of annual or final settlements, says: “At tbe time appointed in said order of publication for said settlement to be made, or so soon thereafter as tbe same is regularly reached, the said judge shall audit and examine said account and vouchers, and after hearing the exceptions to the same, (if any are made,) and the evidence adduced, shall proceed to state the same, and render a decree thereon; which decree shall, in all respects, have the force and effect of a judgment at common law.” In the case of Savage v. Benham, Adm’r, supra, it was decided, and very properly we think, that an annual settlement made under this act by an executor or administrator, was such a decree as would support a writ of error. It is true, the case of Price v. Stewart asserts a different doctrine; but we consider the decision in Savage v. Benham a correct interpretation of the act, so far as this question is concerned.

It remains, however, to be considered whether the act of 1850 has so modified the act of 1843 as to destroy the final character of this species of decrees, and thus render them incapable of being reviewed by writ of error. Section twenty-eight of that act is as follows: “That partial settlements, whether of executors, administrators or guardians, shall, on final settlement, be considered only as prima facie correct, liable to be corrected for any error, either in law or fact; and in no case shall public notice of such partial or annual settlements by advertisement in a newspaper be necessary, unless when some portion of the heirs or legatees reside out of the State: Provided, That this section shall have no application to estates reported insolvent.” Section twenty-nine is as follows : “ That any party aggrieved by any interlocutory or final order or decree of a judge of said court, may, within three years, from the rendition thereof, appeal therefrom to the Supreme Court, under such rules and regulations as said Supreme Court may, from time to time, lay down, regulating-such appeals: Provided, That if the party appealing desires to stay the judgment of said court, he may do so by giving bond, with good and sufficient sureties, in double the amount of said judgment, conditioned and payable as in appeals from the Court of Chancery, which bond shall be approved by the judge of probate: Provided further, That from any judgment or order final in said court, a writ of error shall lie to the Supreme Court, in the same manner as upon judgments of the Circuit Court.”

Tbe first section of tbe last act above cited, in our opinion, so far modifies tbe decrees of tbe Orphans’ Court made on annual or partial settlements of estates, as to deprive them of tbeir character of final decrees, as contemplated by tbe act of 1843. Tbe decision in tbe case of Savage v. Benham, Adm’r, is distinctly placed upon tbe ground that, by tbe terms of the act last named, they were made final decrees, and therefore a writ of error from them would lie. Tbe act of 1860 makes them in terms interlocutory merely, and on final settlement of tbe estate to be regarded only as prima facie correct, and bable to be corrected for any error, either in law or fact. This materially changes tbeir character, and this section, taken with tbe following one providing a mode for reviewing such decrees by appeal, is decisive of tbe question under consideration. Our conclusion is, that a writ of error will not lie •from such a decree. If tbe parties aggrieved by the decision of tbe court wish to revise it here, they must resort to tbe mode provided by tbe statute.

Tbe writ of error is therefore dismissed.