Dabbs v. Dabbs

GOLDTHWAITE, J. There was no error in setting aside the order directing the issue at law, as it was interlocutory merely; and decrees or orders of that character are always under the control of the court making them, until the final decree is rendered. — Davis v. Roberts, 1 S. & M. Ch. 543; Roberts v. Cocke, 1 Rand. 121; Commonwealth v. Beaumarchais, 3 Call, 122; Cook v. Bay, 3 How. Miss. 485. In relation to the refusal of the chancellor to grant a new trial, we see no error. We have carefully examined dll the evidence which the parties agreed to admit on the trial of the issue as to the will, — that which was admitted against the objection of the appellants, and that which was offered on their part and excluded; and we are fully satisfied that, had the first been rejected, and the last received, it should not have altered the result. Indeed, looking to all the evidence, if the verdict had been the other way, we should have regarded it as the duty of the chancellor to have granted a new trial; and under these circumstances, there was no error in overruling the motion, although the inheritance was concerned. — Boothe v. Blundell, 19 Vesey, 494, 503; Alexander v. Alexander, 5 Ala. 517, and cases there cited. As to the deed,' we agree with the chancellor, that the issue as to it was entirely unnecessary. If the will stood, the deed must stand. If the first was valid, the last could not be held invalid. This being the case, and there being no reason why [649] an issue as to the deed should be directed, we will not disturb the verdict which establishes only what was included in the other issue. We will not look into the regularity of a trial in relation to a matter as to which there should have been no trial. Upon the question of the costs at law, it is only necessary to say, that they were certified to the chancellor, and were properly adjudged by him against the appellants. It may have been erroneous in the Circuit Court to have rendered judgment against them, but as it was proper they should have paid them, and as they were rightly decreed against them by the chancellor, there is no injury in the error. Decree affirmed, at the cost of the appellants.