McRee v. McRee

34 Ala. 165

• Court: Supreme Court of Alabama
• Decided: January 15, 1859
• Status: Published

Opinion

A. J. WALKEK, C. J.

The statute requires that notice of the day appointed for the final settlement of an administrator’s accounts should be given. — Code, § 1805. We think the proceedings under the act of 1853-4 (Pamph. Acts, 24,) must be conformable to those prescribed in the Code, and that the same notice would be requisite under that act as under section 1805 of the Code. In this case, the settlement was not made on the day previously appointed, and of which notice was given, and there was no adjournment over from the appointed day. The day appointed was Sunday, and upon that day the court could not act in reference to the settlement. The court had no authority to proceed with the settlement on the succeeding day to that appointed, notwithstanding the appointed day was Sunday. If he could proceed at such time, the law requiring the appointment of a day and notice would be practically abrogated. When the notice specifies a day, on which the court sits, and commences a term continuing on beyond the appointed day, the case might be altogether different from this; and our decision is not intended to embrace such a case.

The receipt copied into the transcript is a matter not belonging to the record, and we cannot look to it for any purpose. There is, therefore, nothing before us upon which the argument of the appellee, that the appeal should not be heard, can be based.

The decree of the court below is reversed, and the cause remanded.