Johnson v. Ray

67 Ala. 603

Opinion

STONE, J.

— The present appeal grew out of a statutory proceeding to obtain a sale of lands for partition, under section 3514 of the Code of 1876. To render such proceedings valid, the petition must contain enough to give the court jurisdiction. — 1 Brick. Dig. 939, §§ 351, 356.

The petition in the present case is fatally defective, in the following particulars : First, The proceeding is not on the application of the persons entitled thereto, or of any one of them. — Code, § 3497. Second, The petition does not set forth the interest of each person — tenant in common — in the lands of which partition is sought; and, third, it does not specify the number of shares into which the land or money is to be divided. — Code, § 3498.

The Probate Court never having acquired jurisdiction in the premises, the whole proceeding is coram non judice and void, and should have been so declared in the Probate Court. Whitman v. Reese, 59 Ala. 532; Jones v. Brooks, 30 Ala. 588.

Reversed and remanded, that the Probate Court may make an order, vacating and annulling the order of sale.