Moore v. Randolph , 52 Ala. 530 ( 1875 )

The motion to dismiss the appeal was granted, the following opinion being delivered thereon by, —

MANNING, J.

In cases of administration transferred from a probate court into a court of equity, “ the chancellor will take them, in the plight and condition they are in, at the time of the transfer, and proceed with them as in chancery cases, applying the law, regulating such estates in the probate court, changing only the mode of procedure, in the same manner as if the cause had originated in his court.” Taliaferro, Adm'r, v. Brown, &c. 11 Ala. 710; Hall, Adm'r, v. Wilson's Heirs, 14 Ala. 295. Some legislation, however, is probably desirable in reference to appeals in cases of administration in equity courts. From decisions that may from time to time be made in the course of administration in probate courts, the statute laws provide that appeals may, from time to time, be taken. Rev. Code, §§ 2244 to 2260. Such appeals bring up for revision only the particular points, or matters involved in the decisions appealed from, with so much of the record, and such of the parties concerned in them, as will enable the appellate court to do justice therein, while the administration, in respect to other matters, may in most cases go on without obstruction in the probate court. This facilitates the transaction of the business of estates, in which frequently it happens that the court must act upon many separate questions and claims, of creditors and others, by orders or decrees made from time to time, successively, which decrees, in respect to such particular matters only, are final, and therefore need, if erroneous, to be speedily corrected.

But the statutes do not give such a right of appeal from partial decrees of a chancellor. Rev. Code, §§ 3485, 3486. If the decree settles only a part of the equities between parties in a cause in chancery, it is not final, in the view of this court. A decree which ascertained and determined all the equities except two items of account, in regard to which a reference was ordered, was held not to be final, so as to authorize an appeal. Garner v. Prewitt, 32 Ala. 13 ; Bradford v. Bradley, 37 Ib. 453.

The decree from which the appeal in this cause was taken was not such a final decree as settled all the equities of the case. And the appeal must therefore be dismissed at the costs of the appellant.

The following opinion was delivered on the motion for prohibition : —

MANNING, J.

The acceptance by the register of Moore’s check or draft upon himself in lieu of money, for the chief part of the price of the land bought by appellants at the sale of the register, seems to have been the result of an agreement between the parties. Such arrangements may sometimes be advantageous. But the persons who concur in them ought to be careful not to permit them to embarrass courts in the performance of their duties. It is not allowable that the plaintiffs in a cause shall be suffered without the consent of the court, though by its action, to get possession pending their suit of the subject-matter of it, and then withhold it so as to hinder the court from distributing it according to law among the parties entitled thereto, — as they had invoked it to do. We do not intend by our decision to signify any approbation of such an interference with the authority of judicial tribunals.

Rittenhouse Moore is not, however, either a complainant or a defendant in this cause. Except as to the costs with which his wife, for whom he is prochein ami, might be chargeable, he was not within the jurisdiction of the chancellor. He was no more subject to the decrees rendered against him in favor of other persons who are parties to this suit, than a surety for costs in an action in a common law court would be liable to its judgment for the amount of a set-off that might be pleaded and proved by a defendant against the plaintiff. Those decx-ees, and the execution upon them against Moore, are wholly void.

In respect to the order of proceeding in this cause: it is a dangeroxxs depax'ture from correct practice for a chancellor ixx a case like this to make, from time to time, partial distributions of a fund in controversy, of which there are several claimants, instead of disposing of it wholly at oxxe tixxxe.

The creditors of Jaxxe Randolph had all been paid before this suit was brought. Nothing-remained to be done after the property was coxxverted into nxoxxey, but properly to divide it among the several legatees, devisees, and others entitled thereto, including the administrator de bonis non, &e., in respect to axxy amount that might be due to him after expenditures properly made in excess of his receipts. And this division should be made by a decree or decrees, which settle at one time the equities of all the parties, and so as to allow, before the execution thereof, an appeal by axxy party interested.

For any errox’s committed by a chancellor in a cause of which he has jurisdiction, the usual and proper remedy is by appeal taken to this court, and to prevent loss it xxiay be necessary to have the execution of the decree suspended. But an appeal from a chancery court can be taken only from a final decree, which settles all the equities of the case. Rev. Code, secs. 3485, 3486; Garner v. Prewitt, supra.

The appeal, moreover, must be taken withixx the time prescribed by law; and if intended to suspexxd the operation of the decree, it ought to be taken without delay. Therefore, partial decrees parcelling out the fund to one or two of several claimants at one term of the court, and to oxxe or two others at another term, axxd so on, directly operate to deprive a party complaining of error of the benefit of an appeal. He must be entitled to protection against the deprivation of a right so invaluable. A case is presented in which this court should grant redress by one of those remedial writs which the Constitution expressly authorizes it to employ in order that it may exercise “ a general superintendence of inferior jurisdictions.” Const. Art. VI. sec. 2. See, also, JEx parte Morgan Smith, 23 Ala. 94.

Under our law (Rev. Code, secs. 3485, 3490, 3491) an appeal in a proper case is a matter of right, and when it is taken from a decree for the payment of money it pertains to the register, and not to the chancellor, to determine whether it shall be allowed or not. Orders or instructions from the chancellor prohibiting the granting of it are void, and will not protect the register from responsibility for refusing an appeal to a person entitled thereto. If he disallows or denies it, he does so at his peril.

And when an appeal is in fact taken from a court of chancery to this court, the cause and all the parties to it are brought into this court. The controversy is drawn ad aliud examen. And while it remains here the chancellor has no jurisdiction to make any decree upon the equities of the parties which shall change their rights in the subject-matter.

Whether the appeal is wrongfully granted or not, it is for this court, not the chancellor, to determine. Hence, while the cause is actually h$re, upon an appeal from a moneyed decree, in which the appellants have executed a good and sufficient bond, in more than double the amount of the decree, to suspend the execution of it, — as has been done in this cause, — the decrees then made by the chancellor, affecting the equities and rights of the parties, are void for want of jurisdiction to render them.

It is within the authority conferred on this court, on application to it, to prevent the decrees complained of from being carried into effect.

A rule nisi will be issued to the chancellor requiring him on the 25th day of March to show cause in this court why a writ of prohibition should not be issued commanding him to desist from further proceeding to have said decrees enforced and executed, and that he vacate and set aside the same.

And in the mean time a temporary prohibition will be issued to restrain the execution of said decrees, until the further order of the court.¹

1 This case was decided at the January term, 1875. In sending the manuscript to the publisher, it was accidentally placed among the decisions of the June term, 1875.