Gartman v. Lightner

49 So. 412, 160 Ala. 202, 1908 Ala. LEXIS 391

Opinions

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 South. 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 he reviewed” — citing 15 Ency. Pl. & Pr. 827; Kellam v. Richards, 56 Ala. 238-240; Morring v. Tipton, 126 Ala. 350, 28 South. 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 he 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.

Tyson, C. J., and Anderson and McClellan, JJ., concur.