Gartman v. Lightner

• Decision Date: 30 June 1908
• Citation: 49 So. 412,160 Ala. 202
• Parties: GARTMAN ET AL. v. LIGHTNER ET AL.
• Court: Alabama Supreme Court

49 So. 412

160 Ala. 202

GARTMAN ET AL. v. LIGHTNER ET AL.

Supreme Court of Alabama

June 30, 1908

On Rehearing, May 11, 1909.

On Rehearing.

Appeal from Probate Court, Mobile County; Price Williams, Jr. Judge.

Petition by Susannah J. Lightner and others against Paul Gartman and others to set aside a decree of sale entered in the probate court. From an order as prayed by petitioners, respondents appeal. Appeal dismissed.

Dowdell C.J., and Mayfield, J., dissenting in part.

R. M Sands, as administrator of the estate of George W. Gartner filed his petition for the sale of certain lands as the property of said Gartner for the purpose of paying the debts of the estate and for the purpose of division and distribution among the joint owners thereof. Following this petition an order of sale was granted for the purposes sought therein. No further proceedings were had in the case, nor were the lands sold on this petition, and so the matter remained until the filing of the present petition to set aside the former order of sale. The allegations of the former petition, after setting forth the appointment of the petitioner as administrator, the names, ages, and residences of his heirs, and the fact that at the time of his death he held the legal and equitable title to certain lots in the town of Citronelle, were that petitioner is informed and believes, and on said information and belief avers, that the foregoing parties own said lands in the proportion shown by the foregoing averments of relationship, and that said lands cannot be equitably divided among them without a sale thereof for division and distribution. It is further alleged on information and belief that the decedent, George W. Gartner, died leaving debts which are unpaid, and the validity of which he does not know, but that they are claims against the estate, and the personal property of the estate is not sufficient in amount or value to pay the same. The decree ordering the sale under the above petition was had on August 2, 1904. The order annulling the former order was made on October 14, 1907, and from this last order this appeal is prosecuted.

D. B. Cobb, for appellants.

Charles L. Bromberg and Sullivan & Stallworth, for appellees.

DOWDELL, J.

The appeal in this case is taken from an order of the probate court annulling and setting aside a decree for the sale of land theretofore rendered by said court. It appears from the record that the former decree of sale was rendered on the application of the administrator filed for that purpose upon two grounds alleged in the petition, viz., for the payment of debts and for division and distribution. The decree of sale was unexecuted, no report of sale having ever been made to or confirmed by the court. The decree as it then stood, when the order annulling it was made and from which this appeal was taken, was interlocutory and not final. Bland v. Bowie, 53 Ala. 152-159. In McQueen v. Grigsby, 152 Ala. 656, 659, 44 So. 961, 962, it was said by this court: "In such proceedings the decree of confirmation is the final decree, from which an appeal may be prosecuted, and on which the entire proceeding may be reviewed"--citing 15 Ency. Pl. & Pr. 827; Kellam v. Richards, 56 Ala. 238-240; Morring v. Tipton, 126 Ala. 350, 28 So. 562. If, then, the decree of sale, before sale and confirmation, is not final, but interlocutory, it logically follows that an order setting aside such decree is interlocutory. The cause is left still pending in the court, to be heard and determined on the petition for sale; the proceedings remaining until final decree in fieri.

The law in regard to appeals from the orders and decrees of the probate court, as found in sections 457 and 458 of the Code of 1896, makes no provision for an appeal from such an order or decree as that from which the present appeal is prosecuted. It follows, therefore, that the appeal in this case must be dismissed.

Appeal dismissed.

LYSON, C.J., and ANDERSON and McCLELLAN, JJ., concur.

On Rehearing.

DOWDELL C.J.

Upon a reconsideration of this case, the majority of the court are of the opinion that the appeal lies, and that the application for a rehearing should be granted, and the judgment of dismissal of the appeal heretofore rendered set aside. The writer is of a contrary view, but thinks the former opinion should be modified as to what was said in regard to the decree of sale being interlocutory and not final. We were led into what was there said by expressions contained in the cited cases of Bland v. Bowie, 53 Ala. 152, and McQueen v. Grigsby, 152 Ala. 656,

44 So. 961. While we did not say in our former opinion that a decree of sale was nonappealable before a sale and confirmation under it, yet what was said might possibly be open to such construction. We now take occasion to correct such an intimation or inference by declaring that an appeal will lie from a decree of sale of the probate court before or after a sale and confirmation under the decree. This principle is sustained by the authorities cited in brief of counsel for appellant.

But that is not the question here. The appeal in this case is not taken from the decree of sale, but from an order or decree of the probate court setting aside and annulling the decree of sale, and made three years after the rendition of the decree. If the decree of sale was valid, and not void, and such is the contention of the appellant, then the order annulling it made three years after its rendition, was absolutely void. We have repeatedly ruled that a void judgment or decree will not support an appeal. Such was the case of Gunter v. Mason, 125 Ala. 644, 27 So. 843, on appeal from a judgment of the circuit court. The appeal was dismissed because of a void judgment. So, in the case of Adams v. Wright, 129 Ala. 305, 30 So. 574, the appeal was dismissed for the reason that it was taken from a void decree of the chancellor. We cite one other case which we think much to the point here, viz., that of Cochran v. Miller, 74 Ala. 50, where the appeal was dismissed. The principle is thus succinctly stated in the ninth headnote: "When the...