Harrison's Adm'r v. Meadors , 41 Ala. 274 ( 1867 )

JUDGE, J.

No appeal would lie, in favor of a personal representative, from a decree of partial distribution, until the passage of the act of December 12, 1857.—Acts, 1857-8, p. 244; Johnson v. Fort, 30 Ala. 78; McAlister v. Thompson, 32 Ala. 497. Under the provisions of the act above cited, the right of appeal, from any final order, judgment, or decree of the probate court, is extended to both parties; the right having before been confined, in cases like the present, to “ the legatee, or person entitled to distribution.”—Code, § 1888, sub-d. 4. We therefore hold, that the final order made in this case will support an appeal by the administrator.

[2:] The application for distribution, on the part of Meadors and wife, contains the essential requisites prescribed by the sections of the Code authorizing the proceeding. But it is contended, that the final decree of July 15, 1861, should not have been rendered, in the absence of notice to the administrator; and the case of Brazeale’s Adm’r v. Brazeale’s Distributees, (9 Ala. 491,) is cited as authority to sustain this position. We consider that case as having been overruled, as to this question, by the later case of Allman v. Owen, 31 Ala. 167. The last mentioned case is in harmony with the general rule, which is undoubtedly correct, that from the service of process, until the final judgment, the parties are presumed to be in court, and need no further notice of orders taken in the cause.—Younge v. Broxson, 23 Ala. 127. The case of Brazeale's Adm'r v. Brazeale's Distributees being in conflict with this wholesome rule, we prefer to let that case stand overruled.

Note by the Reporter. — On a subsequent day of the term, in response to an application by the appellees’ counsel for a re-hearing, the following opinion was delivered :

[3.] It is also contended, that the court below erred in not rendering a separate decree in favor of each distributee ; and in rendering a decree in favor of “ Thomas W. Meadors, in right of his wife, for her use,” when it should have been in favor of the husband and wife, for the use of the wife. These, though irregularities, are not reversible errors, but are amendable in this court, and will be considered as amended. There is, therefore, no error in the proceeding as to Meadors and wife.

[4.] But the decree in favor of John M. Morgan, as guardian of Hicksey Hall Harrison, a minor, can not be sustained. No application for partial distribution had been made in behalf of the minor; and a decree for such distribution can only be rendered, in a proceeding like the present, “ on the application” of the person entitled to it. Code, § 1778. The rule would be different in a proceeding under section 1771 of the Code.

The decree in favor of Meadors and wife must be affirmed; but the decree in favor of Morgan, as guardian, must be reversed, and the .cause remanded. Let a judgment be entered in each case accordingly.

JUDGE, J.

An application is made for a re-hearing in this case, to which we deem it proper to make a brief response. It is insisted, that the decree of the probate court can not be affirmed on the principles decided in the case of Allman v. Owen, (31 Ala. 168,) because it does not appear to have been rendered at a regular term of the court. We judicially know that a regular term of the court was not fixed by law, to commence on the 15th of July, 1861, the-day on which the decree was rendered; but, in the absence of any entry, or other thing of record, showing that the court held on that day was a special term, we must presume that it was a continuation of the regular term.—Duval v. McLoskey, 1 Ala. 710. See, also, Davis v. Davis, 6 Ala. 611. The regular terms of the probate court are not limited to a single day, but they may be adjourned from day to day, until all the business is disposed of. The record of the present case does not show regular adjournments and meetings of the court, until the day of the rendition of the decree; but not in any wise showing the contrary, we must presume such to have been the case. Otherwise, we should place the court in error, by intendment, when error does not affirmatively appear.

The application for a re-hearing is overruled.