Simmons v. Price

18 Ala. 405

• Court: Supreme Court of Alabama
• Decided: June 15, 1850
• Status: Published

Opinion

DARGAN, C. J.

James S. Simmons, administrator do bonis non of William Burns, deceased, cited William C. Price, administrator-in-chief, to appear before the Orphan’s Court and make a final settlement of his accounts as administrator. The administrator-in-chief appeared at the time appointed and moved the court to dismiss the citation for the following reasons: On the 6th day of September 1844, the administrator de bo?iis non cited him to make a final settlement of his administration, and upon such settlement, a decree was rendered against him in afvor of the administrator de bonis 'non, for nineteen hundred and cighty-two dollars and sixty-eight cents; execution issued upon this decree and was returned no property, whereupon, an execution was issued against the securities of Price, and the money made from Williams, one of the securities; after the collection of the money, a writ of error was prosecuted to the Supreme Court, and the decree reversed, but before the suing out of this writ of error, James L. Simmons had filed his accounts and vouchers for a final settlement of the estate, in which he had charged himself with the amount collected on the decree against Price and his securities, and a final settlement had actually taken place, and he had paid over to the distributees the amount ascertained to be in his hands, but it does not appear that any order was made by the Orphans’ Court, discharging the plaintiff from his office as administrator. On these facts, the Orphans’ Court dismissed the petition, which is here assigned for error.

When a judgment is reversed, the rights of the parties are immediately restored to the same condition in which they were before its rendition, and the judgment is said to be mere waste paper. — Dupuy v. Roebuck, 7 Ala. 484, and cases there cited. The plaintiff, therefore, had the right to call on the defendant again to make a final settlement of his administration after the decree of final settlement was reversed, unless the final settlement, made by him in the interim between the rendition of the decree against Price and its reversal in this court, deprives him of that right. But this cannot, in our opinion, affect bis right to require the administrator-in-chief to make a final settlement of his accounts. Although the administrator tie bonis non did make a final settlement, it does not appear that he was discharged from his office, and it is the settled doctrine of this court, that the functions of an administrator or executor do not necessarily cease, even with the Orphans’ Court or the distributees of the estate, upon making a final settlement. — Norman v. Norman, 3 Ala. 389; 5 S & Port. 181; Trash v. Sumwalt, 5 Ala. 15. What would have been the effect of an order finally discharging the administrator from his office, under the circumstances disclosed by this case, it is not necessary to examine, but in the absence of such an order there can be no doubt of his right to bring the admiuistrator-in-chief to a final settlement, notwithstanding the administrator de bonis non had himself made a final settlement, and paid over the amount ascertained to be in his hands. Let the judgment be reversed, and the cause remanded for further proceedings.

Chilton, J., having been of counsel, did not sit in this case.