375 70

Judge, Administrator, v. Tyson, Administrator de bonis. "Package marked, 'belonging to creditors of A. K. Dudley, received of J. M. Cole' ... "Package marked, 'received from John King, administrator of H. H. King, for creditors'.. "Package marked, 'State and county,' with various figures

40 00

454 50"

The inventory from which this extract is taken, and the further fact that said decedent, E. H. Cook, was, before his death, probate judge of Lowndes county, constituted all the evidence in the case. The motion to charge the said Judge with the money contained in these packages, having been argued, was sustained by the court below, which accordingly embraced them in the settlement and decree; to this the said Judge excepted, and appealed to this court, and here assigns the same for error.

STONE, CLOPTON & CLANTON, and CLEMENTS & WILLIAMSON, for appellant.

Cox & WITCHER, and V. S. MURPHY, contra.

BYRD, J.-It is not shown in whose hand-writing the endorsements on the several packages are, nor whether the money contained in them was received by the decedent as judge of the probate court. But whoever may have made the endorsements, and whether the decedent received the money as judge or not, the inventory and evidence did not authorize the court below to charge appellant with the money. The inventory does not show that appellant is liable as administrator for the money; it is not shown to have been assets of the estate. The clear inference from the inventory is, that the money is not the property of decedent, but that it was held for and belonged to others. It was property returned in the inventory; and upon proof that the money did not belong to the person designated in the endorsements or to others, the appellant might be chargable with it. But upon this record the administrator de bonis non has shown no facts which authorized the court below to render a decree in his favor against appellant for this money. An administrator de bonis non is only entitled to a decree for the assets of the estate, or their value, if

Judge, Administrator, v. Tyson, Administrator de bonis.

disposed of by the administrator in chief, and not appropriated by him as required by law. The former is not entitled to recover of the latter the value of property or the property itself, belonging to others, although in the possession of the decedent at the time of his death, unless the title is shown to have vested in his administrator as such.-Swink's Adm'r v. Snodgrass, 17 Ala. 656; King et al v. Griffin, use, &c., 6 ib. 388; Smith's Heirs v. Smith's Adm'r, 13 ib. 329; Williams on Ex'rs, 1407-8.

We infer from the bill of exceptions, that the packages of money came into the administrator's hands, labeled with the owner's names, from the recent possession of the deceased. Detinue might have been maintained for those packages in favor of the respective owners. There was no evidence that the administrator ever appropriated the money as property of the estate, or so treated it. He can not be estopped from asserting that it belonged to the

true owner.

As the charge on account of the packages of money received by the administrator, amounting to $1,242 20, is the only matter of controversy in the case, it is useless to open the case as to any other item.

The decree of the court below is reversed and cause remanded for a re-hearing, as to the liability of the administrator for the packages of money above named, to the amount of $1,242 20, and in all other respects the rulings of the court are affirmed.-Jones v. Dyer, 20 Ala. 373; Sankey v. Sankey, 6 Ala. 607.

JUDGE, J., not sitting.

1. Courts must be held within the time prescribed by law.—When a time is
prescribed by law within which a court shall be held, it is essential to
the validity of the court that its jurisdiction should be exercised within
the time prescribed, and if it transacts business at another and a dif-
ferent time, its acts done within that time, are absolutely void.
2. Same; same.-Although a circuit court, by misunderstanding, was held
the week before the time appointed by law for holding the same, and
the first week of the term proper was regarded as the second, this will
not effect the validity of a judgment rendered on the second day of the
second week.

3. Appeal must be taken in name of all the defendants.-When judgment in
the court below is against two defendants, and the appeal is taken in
the name of only one, it will be dismissed on motion; but the appeal
may be amended.

APPEAL from the Circuit Court of Russell.
Tried before the Hon. ROBERT DOUGHERTY.

THE appellee's testator, one D. N. Gerald, instituted his suit against the appellant, and Wm. K. Aldridge, on the 9th February, 1859, the cause of action being a promissory note. At the spring term, 1866, there was a verdict and judgment for the plaintiff, the suit having been duly revived in the name of the executor. The facts necessary to understand the questions of law decided in the case, will sufficiently appear from the opinion of the court.

JOHN M. PHILLIPS, for appellant.

L. F. McCoy, contra.

JUDGE, J.-We concede the correctness of the principle insisted upon by the appellant, that when a time is prescribed by law within which a court shall be held, it is essential to the exercise of jurisdiction by the court, that it act within the time prescribed, and that should it act at another and a different time, such acts are abso

Prestridge, Executrix, v. Officers of Court.

lutely void. Wightman v. Karsner, 20 Ala. 446.

But this
We judi-

principle has no application to the present case. cially know that Monday, the 14th of May, 1866, was the time appointed by law for the holding of the spring term of the circuit court for Russell county; and we are informed by the record that the cause was tried, and a judgment rendered therein, on the 15th May, 1866, the second day of the term. The fact that a pretended court, by misunderstanding, may have been held the week before, and that the first week of the term proper, was regarded as the second, can have no influence upon the case. We are not called upon to pronounce upon the validity of any action of the court at a time when no court was authorized by law to be held; and such not being this case, we would be compelled to affirm the judgment but for the fact that the appeal is not regularly taken. The judgment is against William K. Aldridge and Edgar Garlick, and the appeal is in the name of Garlick alone. On this ground, a motion is made to dismiss the appeal, and we feel bound to grant it. Shep. Dig. 563, Sec. 11. If it is desired, however, the appeal may be amended.

Appeal dismissed.

PRESTRIDGE, EXECUTRIX, vs. OFFICERS OF COURT. [MOTION TO SET ASIDE JUDGMENT AND QUASH EXECUTION.]

1. Officers of court; mandamus.-Before the adoption of the Revised Code, § 2794, (2389,) which remedied the defect in § 2389 of the Code of 1852, no valid judgment for costs could be rendered in favor of the officers of court, against the plaintiff, on his failure to revive the suit, after its abatement by the death of the defendant. If judgment is rendered against the plaintiff, in such a case, his remedy is by mandamus, and not by appeal.

APREAL from the Circuit Court of Talladega.
Tried before Hon. JOHN HENDERSON.

Prestridge, Executrix, v. Officers of Court.

THIS was a motion in the court below to vacate and set aside a certain judgment rendered by said court, and to quash an execution issued thereon. The facts are as follows:

On the third day of October, 1859, John E. Prestridge, appellant's testator, commenced an action of detinue against Henry P. Oden, sheriff, in said circuit court, for the recovery of certain slaves; the case was continued until the spring term, 1866, when the following judgment entry was made on the minutes of the court: "The death of the defendant, Henry P. Oden, sheriff, being suggested, and the plaintiff refuses to revive, it is ordered by the court that this suit abate, and that the officers of court recover of the plaintiff all the costs in this case." Upon this judgment an execution for costs was issued against the plaintiff. At the spring term, 1867, Sarah F. Prestridge came into court, and having proved to the satisfaction of the court, that said John E. Prestridge had died since the last term of the court, and that she had been appointed and had qualified as his executrix since the last term, moved the court to vacate and set aside said judgment and quash the execution issued thereon. The court refused to sustain said motion to vacate said judgment, or to vacate and quash said execution, and overruled the motion. From this action of the court the said Sarah E. Prestridge appealed, and assigned the same as error.

JOHN T. HEFLIN, for appellant.

A. J. WALKER, C. J.-Section 2389 of the Code of 1852, is in the following words: "When a plaintiff brings a suit, which he suffers to abate by the death of the defendant or other cause; or where the suit abates by the death of the plaintiff, and his representatives fail to revive the same, judgment for costs may be rendered against such representatives in the name of the officers of the court, and are paid as other claims against such estate." The first clause of this section is incomplete, and cannot be supplemented by anything which follows. As it is, it fails to prescribe that judgment might be rendered in favor of the officers of