Abernathy v. O'Reilly

90 Ala. 495

• Court: Supreme Court of Alabama
• Decided: November 15, 1890
• Status: Published

Opinion

STONE, O. J;

The present proceeding originated in a petition filed by O’Reilly, the administrator, for an order to sell real estate to pay the debts of Susan Denty, his intestate. Code of 1886, §§2104, et seg. The averment of the petition is, “ that the personal property of the estate of said decedent is insufficient to pay the debts of the said estate,” without any averment that there were debts, or the amount of them. The existence of a debt is a fundamental condition of the jurisdiction of the Probate Court to grant such order of sale.—Owens v. Childs, 58 Ala. 113. Without such averment the Probate Court does not acquire jurisdiction, and a decree rendered on such defective petition is not simply reversible. It is a nullity, and must be so treated even on collateral attack.—Tyson v. Brown, 64 Ala. 244; Robertson v. Bradford, 70 Ala. 385; S. c., 73 Ala. 116; Meadows v. Meadows, 73 Ala. 356; Land-ford v. Dunklin, 71 Ala. 594; Wilburn v. McCalley, 63 Ala. 436; Quarles v. Campbell, 72 Ala. 64; Whitman v. Reese, 59 Ala. 532; McCorkle v. Rhea, 75 Ala. 213; Ballard v. Johns, 80 Ala. 32; Morgan v. Farned, 83 Ala. 367.

Whenever the petition on its face makes a sufficient case for relief, subsequent irregularities, or the omission of qualifying facts not shown in the petition, do not render the proceedings void on collateral attack. — -1 Brick. Dig. 939, § 355; Pollard v. Hanrick, 74 Ala. 334; Whitlow v. Echols, 78 Ala. 206; Lyons v. Hamner, 84 Ala. 197; Townsend v. Steele, 85 Ala. 580.

The petition should have averred that Mrs. Dean was a married woman, and the name of her husband, if known or ascertainable, should have been given.—Bingham v. Jones, 84 Ala. 202.

The Probate Court erred in not granting the prayer of Mrs. Abernathy’s petition.

Reversed and remanded.