Fidelity Deposit Company v. Fairfield

Smith, J. A suit was brought in the chancery court to surcharge and falsify the settlement account of W. A. Anthonyas administrator of the estate of D. P. Beard. The suit was brought by Fairfield, the administrator in succession, Anthony having resigned, and the chancery court found that credits aggregating $8,417.18 had been erroneously allowed Anthony on the approval of his-settlement''by the probate court. An appeal was prosecuted to this court, and we held that the chancery court was in error in refusing to allow the credit of $8,417.18, but in all -other respects the decree was affirmed. Fidelity & Deposit Co. v. Fairfield, 164 Ark. 498. After the affirmance of this decree Fairfield, as administrator, filed a petition in the chancery conrt to modify the original decree of that court — the decree from/which the appeal to this court had been prosecuted. It was insisted in that proceeding that the decree of the chancery court erroneously recited that the sum found due by the administrator should bear interest “from this date, ’ ’ that is, the date of the rendition of the decree in the chancery court, whereas the court had, in fact, decreed that the sum found due by Anthony should bear interest from the date of the judgment of the probate court finding and declaring the sum due by Anthony and directing its payment to Fairfield as his successor. The chancellor found that petitioner was entitled to the relief prayed and directed that an order should be entered nunc pro tunc correcting the decree of the chancery court by allowing interest from the date of the probate judgment. The surety on Anthony’s bond as administrator has appealed from that order. It is insisted that the testimony did not warrant the finding of the court below, and that nothing more was shown than that the chancery court had erroneously fixed the date from which interest should be calculated. "We do not set out the testimony on which the finding was made, as we regard it as unimportant. The fact is that the decree appealed from to this court directed that the interest should be calculated from the date of that decree, and this decree, although it m&y have been erroneous in the respect indicated, was affirmed by us after modifying’ it by directing- that the administrator have credit for the disputed claims against the estate which he had paid. « The decree of this court pronounced pursuant to our opinion on the former appeal superseded alike the judgment of the probate court and the decree of the chancery court. We adjudged the rights and liabilities of the parties litigant, and the decree of this court was that the decree of the chancery court be modified and affirmed, and our modification did not affect tlie time from which the interest should be calculated. Our attention was not called to the fact that the decree appealed from erroneously directed that interest be calculated from the date of that decree, instead of the date of the probate judgment directing Anthony to pay over the funds in his hands to his successor, and, without having our attention called to this error, which could have been corrected-by us, we affirmed the decree, in so far as it fixed the point of time from which the interest was to be calculated. The decree of this court on the f ormer appeal is conclusive of the question. The effect of the nunc pro tunc order here appealed from is to amend, not only the first decree appealed from, but also the decree of this court on. the appeal. The chancery court was without jurisdiction to do this. It follows therefore that the decree of the chancery court amending the original decree by a nunc pro tunc order is erroneous, and it is therefore reversed, and will be set aside and canceled, and the interest will therefore be calculated from the date of the decree appealed from.