Petty v. Britt's Legatees

46 Ala. 491

• Court: Supreme Court of Alabama
• Decided: June 15, 1871
• Status: Published

Opinion

PETERS, J.

A judgment, without notice to the parties interested in the subject of litigation, is not conclusive as to them, but it is void. — Minor E. 14, 23. In the final settlement of the administration of an estate, the minors are brought into court by a guardian ad litem, if they have no regular guardian. Here the guardian did not accept his appointment, and did not appear for the minors. They were, therefore, not in court at the settlement. Such settlement has heretofore been denounced as void. — Laird, adm’r, v. Reese, 43 Ala. 143 ; Searcey v. Holmes et al., adm’rs, 43 Ala. 608.

The overruling the demurrer to the petition, for the causes shown in the record, was not error. In such a case, the petition could not be regarded as more than a notice to bring the administrator into court to hear the motion,' and the motion must be founded upon the facts shown in the record. If these were sufficient, the court could entertain the application for relief. — Johnson v. Johnson, adm’r, 40 Ala. 247, and cases there cited. There was, then, no error in rejecting the evidence of facts not apparent upon the record. The record must show that the court had jurisdiction, both of the subject-matter and the parties in such a case, else its judgment is void.

The judgment of the court below is therefore affirmed, with costs.