Forrester v. Forrester , 39 Ala. 320 ( 1864 )

A. J. WALKER, C. J.

Eor more than a year after tbe certificate of tbe reversal of a former decree in tbis case was received by tbe probate judge, no step whatever was taken in tbe cause, but it appears to bave remained without notice or attention, either by the court or tbe parties. Under tbe later decisions of tbis court, it is well settled, tbat such facts do not constitute a discontinuance. No mere neglect of tbe Court to docket tbe cause and call it for trial, or mere omission of counsel to cause it to be docketed and called for trial, can, under our decisions, operate a discontinuance. But it would be otherwise, if tbe cause bad, by tbe active agency of tbe party or her counsel, been taken from tbe docket.—Ex parte Remson, 31 Ala. 270; Harrell v. State, 26 Ala. 52; Brown and Wife v. Clements, 24 Ala. 354; Drinkard v. State, 20 Ala. 9; Wiswall v. Glidden, 4 Ala. 357.

[2.] Tbe decree shows tbat tbe land, in which dower was granted, is tbe land described in tbe petition; and tbe land is described in tbe petition as situate in Tuskaloosa county. Therefore, tbe objection tbat tbe land is not shown to be in Tuskaloosa county, is not well taken in point of fact.

[3.] It is necessary tbat tbe petition for dower should state who are tbe heirs, and designate those who are infants or femes covert.—Code, § 1361; Green v. Green, 7 Porter, 19. But we da not think it is indispensable for it to appear from tbe decree tbat proof was made of tbe correctness of tbat statement. Tbe object of tbe statement of tbe names of tbe heirs is to bave tbe proper parties before tbe corut. Tbe fact tbat certain persons are heirs, does not constitute any element in tbe right of tbe dowress. It is sufficient if tbe decree recites tbe facts upon which tbe petitioner’s fight depends. Tbis is substantially done in tbis case.

[4.] Tbe widow’s right of dower did not at all depend upon tbe fact, tbat her husband resided in this State, or in the county where the proceedings were had. We therefore cannot perceive that it was at all necessary that the decree should recite any thing upon the subject.

Affirmed.