Gardner's v. Gardner's Heirs & Distributees

42 Ala. 161

Opinion

A. J. WALKEB, C. J.

In this case the probate judge made a decree on the application of the executor, distributing a large amount of Confederate money unequally among the distributees, and upon the reception of a check for the money, entered satisfaction. Of this proceeding the distributees had no notice, and the names of some of them were not even stated. Such a decree, so affecting the distributees, should not have been rendered without notice.— Harrison v. Harrison, 9 Ala. 470; McCurry v. Hooper, 12 Ala. 823.

It may be that by a perfection of the record, it would appear that the distributees were notified to appear at the time as parties to a proceeding for a settlement of the accounts. But upon such notification, if it was given, the court could not proceed to make the orders that were made after an abandonment of the proceeding for a settlement. There was no appearance or waiver of notice by the parties who assign error.

Beversed and remanded.

Byrd, J., not sitting.