Gamble v. Jordan , 54 Ala. 432 ( 1875 )

BRICKELL, 0. J.

The bill can not be sustained, unless each of the complainants has an interest and is entitled to relief. If the right of one has been determined at law, though the right of the other may not be concluded by the adjudication, relief can not be granted. — 1 Brick. Big. 750, §§ 1634-5. The complainant, Mrs. Ann J. Jordan, was fully sui juris, when the settlement of the administration was had in the court of probate. The jurisdiction of the court was complete and all its proceedings as to her were strictly regular, not affording matter for the assignment of error on appeal. The errors of calculation in the accounts, alleged in th^ bill and entering into the settlement, may have been the subject of correction by bill in chancery, under the statute, (R. C. §2274,) if Mrs. Jordan 'had sought relief within two years after the settlement, and such errors in fact exist. Not having sought the correction within that period, the statute is a bar against her. Though not a bar against the infant complainant, she can have no recovery on this bill in which she is joined with her mother who is barred.

The appointment by the court of probate of a guardian ad liiem to represent the infant complainant, on the final settlement of the administration in that court, may have been irregular. Its regularity is not now matter of consideration. The court had jurisdiction, and if it is necessary to the validity of a final settlement of an administration in a court of probate, when the settlement is collaterally assailed, that a guardian ad litem should appear from the record to have been appointed for minors interested, as to which we express no opinion, the settlement can not be avoided because of an irregular or voidable appointment. When on appeal the validity or regularity of the proceedings of the court of probate in the settlement of administrations is assailed, its records must discover every fact essential to the validity of its sentences. Intendments will not then be made to support them. When, however, the jurisdiction of the court has attached, and appears of record, and the sentence is assailed or impeached collaterally, the rule applicable to superior courts prevails, that all reasonable intendments and presumptions will be made to support them. — 2 Brick. Dig. §§ 5, 6. The jurisdiction of the court • of probate was called into exercise when the administrator filed his accounts and vouchers for a final settlement and a day was appointed for the settlement. Whatever of irregularity there may seem to be in the appointment of a guardian ad litem for the infant complainant, is mere matter of error, not of jurisdiction, and does not detract from the conclusiveness of the decree pronounced by the court. The decree not being impeached for fraud, and no accident or mistake intervening, preventing the appellees from presenting to the court all the matters on which they now insist as grounds for relief, and all of which were involved in it, the decree is a bar against both of them. Waring v. Lewis, 53 Ala. 615. The errors of calculation of which complaint is made, if they exist, the infant appellee has a right to correct, if on application, the appellant refuses correction as to her.

The decree must be reversed, and a decree here rendered dismissing the bill, without prejudice to the right of the appellee, Mary W., to correct any errors the statute entitles her to correct.