Trawick's Heirs v. Trawick's Adm'rs , 67 Ala. 271 ( 1880 )

STONE, J.

— It is settled in this State, that a judgment rendered by a judge, who is related to any of the parties in interest, within the fourth degree, is not, for that reason, void. — Hine v. Hussey, 45 Ala. 496; Hayes v. Collier, 47 Ala. 726. Referring to these two decisions, Brickell, C. J., in Plowman v. Henderson, 59 Ala. 559, said : “ If we had doubts, even grave, of the correctness of these decisions, we could not be justified in departing from them.” Such decision, by a judge thus related, is reversible, or voidable ; but can not be set aside on collateral assault. — Freeman on Judgments, section 145; Heydenfeldt v. Towns, 27 Ala. 423.

It is objected, in argument, that when the settlement was made, in 1859, no personal service was perfected on the infant distributees. The rule in chancery requires personal service on the infant, or some one else for him, depending on the facts of the case. — Rule 23, Chancery Practice; McIntosh v. Chambers, 63 Ala. 241. The rule in the Probate Court is different. — Stabler v. Cook, 57 Ala. 22; Mutton v. Williams, 60 Ala. 107.

The decree of the Probate Court, on final' settlement, in 1859, being only irregular, and not void, and no appeal from it being prosecuted, all its provisions and terms become res adjudícala ; and, after the term at which it was rendered, the Piobate Court- had no jurisdiction whatever to vacate the decree, or retry the questions therein settled.— Cunningham. v. Thomas, 59 Ala. 158; Hutton v. Williams, supra. If timely application had been made, it is probable a writ of prohibition would have lain to restrain the action of the- Probate Judge, as being without' his jurisdiction. — Ex parte Carswell, 60 Ala. 378.

The rulings of the Eegister, acting for the Judge of Probate, who- was incompetent, are strictly in accordance with, these views.

Affirmed.