Holdsombeck v. Fancher , 112 Ala. 469 ( 1895 )

HEAD, J.

Section 2183 of the Code of 1886, provides that “on the settlement of the estate of a decedent yrhen such estate is free from debt, the probate court in ■which such settlement may be pending has authority to refer all matters of controversy arising in such settlement to arbitration, if in the opinion of the court, the interests of the parties can be best subserved thereby, and the parties, or their attorneys, consent thereto;” and the subsequent sections of the article contain further provisions for the appointment of the ai'bitrators, the making of the award, the entry thereof as the judgment of the court, or its setting aside, if not approved. It is an entire misconception to suppose that the record discloses a case, allowing the application of these sections. The petition which the administrator filed in the probate court, wherein he prayed for an order, under section 2183 of the Code of 1886, submitting to arbitration the dispute between him and the three persons named, as to the ownership of certain personal property, did not disclose any matter of controversy arising in the settlement of the estate he was administering, within the meaning of that section. It did not show that any settlement of the estate was pending in the probate court. The dispute alleged in the petition simply was whether the exenrptions which had been set apart to the widow of the decedent, upon her death, reverted to her husband’s estate, or whether said property belonged to the three named parties, who were alleged to be in possesssion of part of it,- the petitioner alleging that another portion was in his hands. In other words the administrator had property claimed by third persons and they had property claimed by him, thus creating controversies which the circuit but not the probate court has jurisdiction to determine, and which the administrator, by virtue of his authority to institute or defend suits, could submit to arbitration. — Jones, Admr. v. Deyer, 16 Ala. 221. The petition to the probate court for authority to arbitrate the dispute was, therefore, unnecessary and its order granting the petition was as impotent as it was unauthorized by section 2183 of the Code of 1886, which was designed to meet cases of controversy arising out of the settlement and distribution of estates, of which the probate court has jurisdiction, and existing between the parties to such settlements. The proceedings which were had in the probate court, looking to the entry of the award of the arbitrators, selected by the parties, as the judgment of that court, were all cora to non judice; and its judgment setting the award aside was void. From such a void and unauthorized judgment, no appeal lies to this court, and this appeal must, upon our own motion, be dismissed. — Pettus v. McKinney, 56 Ala. 41; David’s Admr. v. David, 56 Ala. 49 ; Hays v. Cockrell, 41 Ala. 75.

We need hardly say that the agreement of the parties, contained in the articles of submission, that the award should be entered up as the judgment of the probate court of Bibb county could not confer jurisdiction upon that court, nor impose upon it the duty of complying with such agreement.

The view we take of the case renders it unnecessary to notice the contentions of counsel, arising out of the various motions, counter-motions and rulings thereon in the probate court.

Whatever rights, if any, the parties have, growing out of their submission of the dispute between them to arbitrators of their own selection, and the award made in consequence of such submission, they are free to effectuate in some appropriate method, should resort to legal remedies be necessary. This is not the time, however, to consider the nature of those rights and remedies.

The cross assignments of error cannot be, entertained; indeed, they could not be considered, even if the judgment of the probate court had been of such a character as would have supported the appeal. An appellee in this court cannot make a cross assignment of errors, when no judgment has been rendered against him,which would support a separate appeal. Rulings made during the progress of a cause against the party who ultimately prevails are mere abstractions, not revisable upon the appeal of the losing party, even though the appellant consents that such rulings may be assigned for error and he files a joinder therein. — Wright v. Evans, 53 Ala. 103 ; Leslie v. Langham, 40 Ala. 524.

The cross assignments of error must be stricken, and the original appeal dismissed.