Bogia v. Darden

BYRD, J. When a guardian removes from the State, without making final settlement, the judge of probate is authorized to state an account in his absence, from the materials in the office, and such testimony as may be adduced.—Code, § 2038. In the settlement of the accounts of guardians, and in all the preparatory proceedings thereto, the law providing for the settlement of the accounts of executors and administrators, so far as applicable, is in full force against guardians and their sureties, if not in hostility to any provision of chapter 3d, title 5, part 2 of the Code.—Code, § 2039. If any executor, or administrator, fails to make settlement as required by section 1876 of the Code, the court may state “the account against him, from the materials in the office, or such other information as may be accessible to the court, charging him with such articles as may have come to his hands.—Code, § 1878, After stating such account, and giving notice of the same by publication, as in case of other settlements, the court must proceed to examine the account, audit, and re-state the same, if necessary. — Code, § 1879. The court, after stating such account, must render a decree thereon, in favor of the remaining, or any succeeding executor or administrator; or, if the estate can be finally closed on such settlement, must render decrees as on a final settlement thereof.—Code, § 1881. Section 1880 provides for a contest of the account stated under the provisions of sections 1878 and 1879. Upon the filing of an account, vouchers, evidence, and statement for a final settlement, the judge of probate is required to appoint a day for such settlement, and must give notice of the same, by publication in some paper published in the county, if there is one so published, for three successive weeks.—Code, § 1805. Such notice must state the name of the executor, or administrator, the name of [326] the deceased, and the day appointed for settlement; and if the settlement is proposed to be final, it must be so stated.—Code, § 1806. We have stated, substantially, so much of the Code as is necessary for the decision of the questions raised on the record and argued by counsel. It is insisted by counsel for appellant, that the court below erred in rendering a decree final, for the reasons, that the record does not show that appellant had removed from the State; and that, if it did, it does not show that publication was made as required by the foregoing provisions of the Code. This settlement would be held good on a collateral attack, under the decisions of this court; but can it be sustained upon a direct attack on appeal ? The record does not disclose any evidence to show that the appellant had removed from the State, and the recitals in the several decrees do not refer to any. The only reference is to the petition of the ward, which is not verified by oath or affidavit. The order of publication does not require the notice to be published for any definite or indefinite period of time ; nor does the decree or record show that the order of publication was published in a newspaper for a longer time than one insertion. In the case of Wright v. Clough, (17 Ala. 490,) this court assimilates these proceedings, under a statute in its provisions similar to the above provisions of the Code, to like proceedings against a non-resident defendant to a bill in equity; and it would seem to follow that, where, on appeal, a decree pro confesso against a non-resident defendant to such a bill would not be held good, neither would a decree against a non-resident guardian, under the same or like circumstances, be held good. We think it clear, upon the authority of the following eases, decided by this court, that neither a decree pro confesso in chancery, nor a final decree in the probate court, on a record like this, would be held good on appeal: Croft v. Terrell, 15 Ala. 652; Croft v. Ferrell, 21 Ala. 355; Hartley v. Bloodgood, 16 Ala. 233; Lyon v. Odom, 31 Ala. 234; 28 Ala. 265; Wyatt v. Rambo, 29 Ala. 510; Keifer and Wife v. Barney & Bro., 31 Ala. 192. If the appellant had appeared in the court below, on the hearing, and made no objection to the preliminary proceed [327] ings in that court, it would have been too late, perhaps, to have made them for the first time in this court. But, where a party seeks to sustain a decree against another, who had no personal notice of the proceeding, the record must affirmatively show, upon appeal, the existence of every material fact, prescribed by law, as a pre-requisite to the rendition of the decree; or it is reversible. Neither the removal of the appellant from the State, nor the publication of the notice for the time, and as prescribed by law, sufficiently appears upon the record to have authorized the probate court to render the final decree in this cause. It results, that the decree of the probate court must be reversed, and the cause remanded for further proceedings.