Bohannan v. Watts

CHILTON, J. The final decree was rendered in this cause, on the 16th June, 1842, and the writ of error was sued out on the 24th May, 1848, so that nearly six years intervened between the final degree and the issuance of the writ of error. The question is presented, whether the writ of error is not barred by the statute, and should not be dismissed. By the 7th section of the act of 1820, (Dig. 309, § 17,) it is provided, “ a writ of error may issue to reverse a final judgment in the circuit court at any time within three years after the rendition of the judgment, and not afterwards.” By the -23d section of the act of 1821, in relation to the jurisdiction of the county or orphans’ court, it is provided, that “from any judgment or order final, whether in vacation or term time, an appeal or writ of error shall lie to the circuit or su 575 preme court, in the same manner as upon judgments of the circuit courts. (Clay’s Dig. 297, $ 4.) It is contended by the counsel for the plaintiffs in error, that this statute merely relates to the manner in which appeals may be prosecuted, or writs of error shall be sued out, and does not have reference to the time within which they may be taken. We do not agree with the counsel, and think such construction would do violence to the intention of the legislature. ■ It can hardly be presumed, that the legislature has prescribed no time within which a writ of error may be sued out, from the decree of the orphans’ court. It would perhaps be difficult to obtain competent persons to serve as executors and administrators, if by law the time should never arrive when the proceedings of the court discharging them, could not be overhauled. The want of such a statute would be very severely felt, and consequences the most disastrous would doubtless often ensue to the executors and other fiduciary agents who are required to settle with the orphans’ court, if, after the lapse of many years, their settlements should be opened, and they were again required to prove the various items contained in their accounts. Besides, if the construction contended for were allowed, the statutes upon the subject would exhibit a striking want of conformity in their application to the same subject matter when tried in different courts. The chancery courts, under certain circumstances, have concurrent jurisdiction with the orphans’ court of estates of deceased persons. It cannot be denied, that the three years limitation applies to final decrees in that court. In cases where the orphans’ court judge is incompetent to sit, the settlement of the estate is to be transferred to the chancellor. Now, is it reasonable to suppose the legislature could have intended that the accidental circumstance of the judge being interested as a party, or as counsel, or as related to some of the parties, should change the bar of the statute of limitations with respect to an appeal, or writ of error? We think it clear the statute was designed to apply alike to writs of error from all the courts to which such writs would lie from the supreme court, and that the 23d section of the act of 1821, (Dig. 197, § 4,) applies as well to the time when, as to the mode in which such writs of error or appeals should be 576 taken from the orphans’ court to the circuit or supreme court. This construction makes the statutes harmonize, and in our opinion fully accords with the policy of our various legislative enactments upon the subject. See Clay’s Dig. 195, <§> 14, where writs of error or appeals from judgments of orphans’ courts upon trials of issues, under the act of 1843, are limited to one year. See also, Boyett et al. v. Kerr, 7 Ala. Rep. 14. Writ of error dismissed,