Capell v. Landano , 34 Ala. 135 ( 1859 )

A. J. WALKER, C. J.

The proceedings in the orphans’ court, for the final settlement of the guardian’s accounts, was continuous from its commencement to its dismissal. It was not a proceeding of separate and distinct parts, each complete in itself, but one in which every step, from its commencement, tended to the result of a final settlement by a final decree. Until its termination by some final decree, it was incomplete: it remained sub judice ; the jurisdiction of the court over it continued, and the court retained jurisdiction over the question of its dismissal. A dismissal of the proceeding before its termination, and while it still remained under the jurisdiction of the court, prevented any of the orders or ascertain-menta previously made from having any effect as evidence. McLane v. Spence, 11 Ala. 172. If a court never proceeds further than to ascertain some interlocutory matter, which is merely preliminary to the decree, such ascertainment cannot be evidence; because it was not conclusive, but subject to be vacated or altered by the court, at any time before the rendition of its decree. — Baugh v. Baugh, 4 Bibb, 556 ; Thompson v. Peebles, 6 Dana, 387 ; Davis v. Roberts, 1 S. & M.’s Ch. R. 543; Dabbs v. Dabbs, 27 Ala. 647; Rhodes v. Turner, 21 Ala. 217 ; Willis v. Willis, 16 Ala. 652; Ashley v. Ashley, 15 Ala. 15.

If it be conceded that the orphans’ court, in virtue of an appearance by an attorney, had jurisdiction of the persons of the infants, (as to which, see Riddle v. Hanna, 25 Ala. 484; Cook v. Adams, 27 Ala. 294; Clack v. Clack, 20 Ala. 461; Smith v. Smith, 21 Ala. 761; Preston v. Dunn, 25 Ala. 507;) and if it be further conceded that the settlement of the account, with the judge’s subjoined notes, was truly and properly a part of the record, (as to which, see Shadden v. Sterling, 23 Ala. 518; Hall v. Hudson, 20 Ala. 284; Hudson v. Hudson, 20 Ala. 364;) it is nevertheless clear, that the auditing of the account, and its statement by the judge, accompanied as they are by no judgment of the court, were but the interlocutoiy ascertainment of a fact preliminary to a decree, and (the proceeding having been afterwards dismissed) are not evidence against any person of a judicial decree.

The chancellor erred, therefore, in treating the account stated by the judge of the orphans’ court as the measure of the complainants’ recovery. The decree of the court below is reversed, and the cause remanded.