Peake v. Redd

Napton, J., delivered the opinion of the court. Much of the difficulty in this case grows out of the confused state of the record. The legal principles upon which the case turns are sufficiently obvious, if the true history of the case could be gathered from the record. As far as this can be done, we infer the facts to have been about as follows. In 18S9, upon the death of Thomas Francis, John T. Redd, who had married one of his daughters, was appointed administrator of his estate. In November of that year, the county court appointed commissioners to assign to the widow her share of slaves belonging to the estate. • The commissioners estimated the value of the slaves at $6000, and allotted one-third to the widow as her dower. In January, 1841, commissioners were appointed to make partition among all the heirs, and also to assign the widow her dower. These commissioners in March of that year reported the slaves not divisible in kind. From this period until the 25th Feby., 1843, various steps were taken and orders made; but upon this day the court made a final order of distribution, allowing one-third of the personal estate to the widow and distributing the residue among the heirs at law. At the November term, 1844, the distrubutees appeared in court and filed a petition or motion to set aside the allotment of one-third to the widow as her dower instead of one-thirteenth, as it should iiave been. This motion was sustained, and an appeal taken to the circuit court, which latter court reversed the order of the county court last named and ordered the original allotment to stand. It does not appear from the record, that any notice was given, as the law required, prior to the first order made in Dee., 1839, for the appointment of commissioners to allot the widow’s dower. The act of [83] Feb. 6th, 1837, under which this order was made, directs “that 10 days notice shall be given of every application for such partition and assignment to the executor or administrator and to all the heirs and legatees interested therein, on their guardians or agents.” So far as this order of 1839 is concerned, the record shows no notice pf any kind. Had the case remained in this position, the propriety of the action of the court in 1844, in vacating this order, would be obvious. The acts of a court of record must be shown by the record itself; nor will any presumption of notice arise where the record is silent. But the subsequent proceedings of the county court, though involved in some obscurity, are sufficiently set forth by the record to show that before the final order made in .Feb., 1843, all the parties in interest were actually before the court. The final order allotting one-third of the slaves to the widow was not made until 1843, when the estate was distributed to all the heirs. It is true that the allotment of one-third in 1839, was the basis of all the subsequent proceédings in that court, or before, commissioners appointed by that court; but this error in the allotment of 1839, as well as in the subsequent proceedings, was obviously the result of a misunderstanding of the law, both by the court and all the parties to the proceedings and not occasioned by any want of notice. In relation to the final order, the record says, “It appearing to the satisfaction of the court that due notice has been given of the intention to make this application, and nothing to the contrary having been shown, &c.” This question of notice is the only one presenting any difficulty in the case, but taking the above statement made on the record, in connex-ion with the various notices and appearances also recorded, we have concluded that there is no ground for complaining now of a want of notice. In truth the ground upon which the motion was based in the county court was nót a want of notice, but an error of law. It is quite apparent that this was the real cause of complaint, and that want of notice is a mere afterthought. There is no question as to the conclusiveness of the final order made in 1843, if the parties had the notice. A final order of a county court cannot be set aside at a subsequent, term, merely upon the ground of error. There would be no end to legislation if county courts or any other courts, could renew their own acts from term to term, and correct supposed errors in their past decisions. The matter is beyond their reach. Let the judgment of the circuit court be affirmed.