Foust v. Chamblee's Administrator

PETERS, C. J. When the judgment from which this appeal is taken is contrasted with the facts set out in the record, such a result as appears from it could hardly have been anticipated. The transcript shows that the guardian made final settlement of his guardianship in 1863 ; and by this it is shown that he had properly accounted for all the ward’s estate that had come into his hands, and that there was a decree final in his favor upon said settlement. And after this a decree in the same case and oh the same record was rendered against him for the sum of $3,008.36 of the ward’s estate remaining in his hands, in 1872. In other words, the record shows two decrees on the same matters between the same parties; one in favor of the guardian, which entitles him to be discharged, and the other a subsisting liability against him of above $3,000. The record of a guardianship in the court of probate makes but one cause, and in dealing with this cause it is necessary for the court to consider every part of it. Moseley v. Tuthill, 45 Ala. 621. If the record discloses that there is a final judgment in favor of either of the parties to the proceeding, the court cannot overlook and ignore this final judgment; and before the court can proceed beyond this final judgment, it must be set [79] aside, because it is void, on a proper proceeding for that purpose, or it must be reversed for error. When either of these ends is effected, then the court can proceed to a new trial, but not before. Here, the petition shows that the guardian made final settlement of his guardianship in 1863. This also appears from the record. It is true that the petition alleges that this final settlement was void. But this is a mere blank statement without the allegation of any facts which support it, save the character of the court in which the final settlement was made. The character of the court was not sufficient to render the decree void. This is a matter of law, which the court will notice. It is not shown that there was any error in it, or any fraud in its procurement. The mere fact that the decree on the guardian’s final settlement was rendered in 1863, during the war, did not render it void. Riddle et al. v. Hill's Adm'r, at the present term; Horn v. Lockhart, 17 Wall. 570. Then, if it was not void, it was a final decree in favor of the guardian, and estopped any further proceeding on the same record, as long as the decree remained unimpeached and unreversed. 1 Ala. 406. The petition of the appellee, under the facts shown by the record, was merely an application for a new trial. The term of the court had long been adjourned at which the decree was rendered. In such a case, the application for a new trial came too late. 2 Brickell’s Dig. p. 276, § 3. The statute clothes the court of probate with jurisdiction to enforce a final settlement of a guardian’s accounts, in a case where no such settlement has been made. The language of the law is this: “ When a guardian removes from this State, without making final settlement, or, upon citation to appear and make a final settlement, fails to attend, without showing sufficient cause therefor, the judge of probate may proceed and state the account in his absence, from materials in his office, and such other testimony as may be adduced.” Rev. Code, § 2448. The proceeding thus authorized is to be conducted as settlements of executors and administrators in similar cases are to be conducted. Rev. Code, §§ 2449, 2137, 2153. In any of these cases, if the record shows that a final settlement has been made, the jurisdiction of the court has been exhausted, and such settlement cannot be repeated in the same case, upon the same record, and between the same parties. The second final decree in the same case is necessarily a mere nullity. This is not like the case where there are two records and two causes. There, the former judgment or decree is only an estoppel when given in evidence, or when pleaded. It is otherwise when this is shown by the record itself. 1 Greenleaf Ev. § 531. The decree first rendered in this cause in 1863 cannot be assailed in this way. If it was erroneous, it should have been corrected [80] on appeal. Rev. Code § 3485. And if it showed errors of law or fact in the settlement, such errors may have been corrected in chancery according to the provisions of sections 2274 and 2275 of the Revised Code, or under Ordinance No. 40 of the convention. Acts 1868, p. 187. They cannot be corrected in the manner here attempted. Rev. Code, § 2451. Note by Reporter. — On a subsequent day of the term, the appellee’s counsel having applied for a rehearing, the following opinion was delivered : — The court below should not have entertained jurisdiction of the petition in this case, nor should the citation have been issued. The proceeding should have been dismissed. And that judgment being the proper judgment that should have been rendered in that court, it will be rendered here. Therefore, the judgment of the court below is reversed, and the cause is dismissed, at the costs of the appellee (said Gillespie). Brickelr, J., not sitting, having been of counsel in the cause below. PETERS, C. J. This application for a rehearing is on the ground that the final settlement made by the guardian Foust, on the 13th day of April, 1863, after the death of the ward, is a nullity. This was not overlooked on the examination of the record in preparing the original opinion. The ward died early in August, 1862, and Lemuel Arnold was duly appointed administrator of his estate on the 21st day of August, 1862. The settlement referred to was made after this appointment. This was shown to the court by proper proof on the settlement. It was also shown that proper notice was given of the day of the settlement, as required by the Code, and that the settlement was otherwise regularly conducted. This was sufficient to give the court jurisdiction. Rev. Code, §§ 2449, 2137, 2140. Such a settlement is not void. Satcher v. Satcher's Adm'r, 41 Ala. 26. The administrator of the ward’s estate being in court by a proper notice of the settlement, the appointment of a guardian ad litem for the dead ward was mere surplusage. It did not vitiate the proceedings, which were regular. The statute does not require other notice of the settlement than notice by publication to those interested. It appears that this notice was duly given. The grounds relied on in the application are not sustained by the record. The application is, therefore, denied with costs. Brickell, J., does not sit in this case, having been of counsel.