Binford v. Binford , 22 Ala. 682 ( 1853 )

GOLDTHWAITE, J.

The only, question necessary to consider in this case, arises upon the action of the Circuit Court in overruling the motion there made to dismiss the writ of error. The decree of the Orphans’ Court was rendered in 1848; the writ of error was not sued out until 1852; and'it has been settled by this court, that the period of limitation for writs of error upon decrees of the Orphans’ Court, is three years. Bohannan v. Watts, 14 Ala. 574.

This would appear to be decisive of the case; but it is urged on the part of the defendant in error, that he was not a party to the decree rendered in 1848, not being represented by guardian ad litem upon tbe settlement on which the same was based; that he only became a party by the subsequent proceedings in the Court of Probate, and the order there made in February, 1852; and that the decree was only operative, as against him, from that date.

It is true, that in cases pending in the Probate Court, any person claiming an interest in the cause or subject matter of the suit may intervene, and by petition make himself a party; and being made a party, he can then properly sue out a writ of error. Watson v. May, 8 Ala. 177. The case of Lee v. Browning, 15 Ala. 499, goes a step further, and recognizes the practice of making new parties after a final decree, for the purpose of reversing the same on error. Where, however, this is done, the person thus made a party stands precisely in the same situation as if he had been upon the record at the rendition -of the decree. If he was allowed three years from the 'time he was thus made a party, within which to sue out his writ of error, it follows that any one who would have the right, under the decision last referred to, to ’ come into the caSe, might postpone the revision of the decree beyond the period fixed by law, and by this course effectually defeat the limitation to writs of error as fixed by the legislature. To avoid these consequences, we must hold that, when a party is made after the rendition of a decree in the Probate Court, for the purpose of contesting its validity by writ of error, the entry making him a party relates back to the rendition of the decree; and that being the case, he would be required to bring his writ of error within three years -from the rendition of the decree which it is his object to reverse.

Our opinion on this point, as it is decisive of the case, renders it unnecessary to decide the other points made. The Circuit Court should have dismissed the writ of error; its judgment is therefore reversed, and judgment here rendered dismissing Such writ.