[Foust v. Chamblee's Administrator.] of the subject-matter and the parties, a final decree of the probate court cannot be collaterally impeached, on account of irregularities which would reverse it on error. 31 Ala. 234; 47 Ala. 196; 3 Ohio St. R. 498; 2 Howard, U. S. 328. 2. As the judgment of a Confederate court, that decree has the force of a foreign judgment, and is prima facie valid. Mosely v. Tuthill, 45 Ala. 621; McSwean v. Faulks, 46 Ala. 610; Shaw v. Lindsay, 46 Ala. 290; Griffin v. Ryland, 45 Ala. 690. THOS. H. WATTS, contra.-1. The pretended final settlement of 1863 is a nullity. It shows on its face that the ward was dead, and that there was an administrator of his estate who was not a party to the settlement. The appointment of a guardian ad litem for the deceased ward was without authority, and gave him no standing in court; and there was, in effect, but one party to the settlement. That such a decree is void, see Spence v. Simmons, 19 Ala. 828; Turner v. Dupree, 19 Ala. 198; Gilbreath v. Manning, 24 Ala. 418; Joseph v. Joseph, 5 Ala. 280; Cockrell v. Hays, 41 Ala. 75; Johnson v. Johnson, 40 Ala. 2. Even if such settlement be held valid for any purpose, the appellant cannot set it up in this court, because he failed to appear and plead it in the probate court. Autrey v. Johnson, at January term, 1872. PETERS, C. J. When the judgment from which this appeal is taken is contrasted with the facts set out in the record, such a result as appears from it could hardly have been anticipated. The transcript shows that the guardian made final settlement of his guardianship in 1863; and by this it is shown that he had properly accounted for all the ward's estate that had come into his hands, and that there was a decree final in his favor upon said settlement. And after this a decree in the same case and on the same record was rendered against him for the sum of $3,008.36 of the ward's estate remaining in his hands, in 1872. In other words, the record shows two decrees on the same matters between the same parties; one in favor of the guardian, which entitles him to be discharged, and the other a subsisting liability against him of above $3,000. The record of a guardianship in the court of probate makes but one cause, and in dealing with this cause it is necessary for the court to consider every part of it. Moseley v. Tuthill, 45 Ala. 621. If the record discloses that there is a final judgment in favor of either of the parties to the proceeding, the court cannot overlook and ignore this final judgment; and before the court can proceed beyond this final judgment, it must be set [Foust v. Chamblee's Administrator.] aside, because it is void, on a proper proceeding for that purpose, or it must be reversed for error. When either of these ends is effected, then the court can proceed to a new trial, but not before. Here, the petition shows that the guardian made final settlement of his guardianship in 1863. This also appears from the record. It is true that the petition alleges that this final settlement was void. But this is a mere blank statement without the allegation of any facts which support it, save the character of the court in which the final settlement was made. The character of the court was not sufficient to render the decree void. This is a matter of law, which the court will notice. It is not shown that there was any error in it, or any fraud in its procurement. The mere fact that the decree on the guardian's final settlement was rendered in 1863, during the war, did not render it void. Riddle et al. v. Hill's Adm'r, at the present term; Horn v. Lockhart, 17 Wall. 570. Then, if it was not void, it was a final decree in favor of the guardian, and estopped any further proceeding on the same record, as long as the decree remained unimpeached and unreversed. 1 Ala. 406. The petition of the appellee, under the facts shown by the record, was merely an application for a new trial. The term of the court had long been adjourned at which the decree was rendered. In such a case, the application for a new trial came too late. 2 Brickell's Dig. p. 276, § 3. The statute clothes the court of probate with jurisdiction to enforce a final settlement of a guardian's accounts, in a case where no such settlement has been made. The language of the law is this: "When a guardian removes from this State, without making final settlement, or, upon citation to appear and make a final settlement, fails to attend, without showing sufficient cause therefor, the judge of probate may proceed and state the account in his absence, from materials in his office, and such other testimony as may be adduced." Rev. Code, § 2448. The proceeding thus authorized is to be conducted as settlements of executors and administrators in similar cases are to be conducted. Rev. Code, §§ 2449, 2137, 2153. In any of these cases, if the record shows that a final settlement has been made, the jurisdiction of the court has been exhausted, and such settlement cannot be repeated in the same case, upon the same record, and between the same parties. The second final decree in the same case is necessarily a mere nullity. This is not like the case where there are two records and two causes. There, the former judgment or decree is only an estoppel when given in evidence, or when pleaded. It is otherwise when this is shown by the record itself. 1 Greenleaf Ev. § 531. The decree first rendered in this cause in 1863 cannot be assailed in this way. If it was erroneous, it should have been corrected [Foust v. Chamblee's Administrator.] on appeal. Rev. Code § 3485. And if it showed errors of law or fact in the settlement, such errors may have been corrected in chancery according to the provisions of sections 2274 and 2275 of the Revised Code, or under Ordinance No. 40 of the convention. Acts 1868, p. 187. They cannot be corrected in the manner here attempted. Rev. Code, § 2451. The court below should not have entertained jurisdiction of the petition in this case, nor should the citation have been issued. The proceeding should have been dismissed. And that judgment being the proper judgment that should have been rendered in that court, it will be rendered here. Therefore, the judgment of the court below is reversed, and the cause is dismissed, at the costs of the appellee (said Gillespie). BRICKELL, J., not sitting, having been of counsel in the cause below. NOTE BY REPORTER. On a subsequent day of the term, the appellee's counsel having applied for a rehearing, the following opinion was delivered: PETERS, C. J.-This application for a rehearing is on the ground that the final settlement made by the guardian Foust, on the 13th day of April, 1863, after the death of the ward, is a nullity. This was not overlooked on the examination of the record in preparing the original opinion. The ward died early in August, 1862, and Lemuel Arnold was duly appointed administrator of his estate on the 21st day of August, 1862. The settlement referred to was made after this appointment. This was shown to the court by proper proof on the settlement. It was also shown that proper notice was given of the day of the settlement, as required by the Code, and that the settlement was otherwise regularly conducted. This was sufficient to give the court jurisdiction. Rev. Code, §§ 2449, 2137, 2140. Such a settlement is not void. Satcher v. Satcher's Adm'r, 41 Ala. 26. The administrator of the ward's estate being in court by a proper notice of the settlement, the appointment of a guardian ad litem for the dead ward was mere surplusage. It did not vitiate the proceedings, which were regular. The statute does not require other notice of the settlement than notice by publication to those interested. It appears that this notice was duly given. The grounds relied on in the application are not sustained by the record. The application is, therefore, denied with costs. BRICKELL, J., does not sit in this case, having been of counsel. [Balkum v. Satcher.] Balkum v. Satcher. Bill in Equity to set aside Sale of Decedent's Lands under Order of Probate Court. 1. Ordinance No. 40 of constitutional convention, "to allow widows, orphans," &c., "to review validity of sales made by guardians," &c. - Ordinance No. 40 of the constitutional convention of 1867, entitled "An ordinance to allow widows, orphans, and others, to review the validity of sales and settlements of estates made by guardians, trustees," &c., is inoperative proprio vigore, and requires legislative action to give it force and effect. 2. Conclusiveness of probate decree, affirmed on error, refusing to set aside sale of decedent's lands for want of jurisdiction. — A decree of the probate court, affirmed by this court on appeal, refusing to set aside a sale of a decedent's land, under an order of said probate court in 1863, as void for want of jurisdiction, is a bar to a bill in chancery subsequently filed by the same parties, which seeks to set aside the sale on the ground of fraud, and relies, as proof of fraud, on the same facts then set up, with others, as showing want of jurisdiction, to wit, the sale for cash in 1863, payment in Confederate currency, the purchase of part of the lands by the administrator, who had no interest in the estate, and of another part by the probate judge who made the order, and who afterwards confirmed the sale, and the want of notice to some of the parties. APPEAL from the Chancery Court of Henry. Heard before the Hon. B. B. MCCRAW. The bill in this case was filed on the 24th July, 1871, by Jesse Satcher and others, as the heirs-at-law of Herrin M. Satcher, deceased, against James W. Balkum and others; and sought to set aside a sale of certain real estate, which belonged to said Herrin M. Satcher at time of his death, and was sold, under an order of the probate court of said county, on the 7th December, 1863. The sale was made on the petition of the administrator of the estate, for the purpose of distribution among the parties interested, on the ground that the lands could not be equitably divided without a sale; was reported to, and confirmed by the said probate court, and deeds made to the purchasers under its order. At the sale, a portion of the lands was bought by the administrator, William T. Kirkland, who was not one of the distributees of the estate, and another portion by the probate judge, who granted the order of sale, and by whom the sale was afterwards confirmed; and the purchase-money was paid in Confederate currency. The bill alleged that said sale was "fraudulent, illegal, and void;' that the order of sale was granted by a rebel court; that the order required the sale to be made for cash, while Confederate money was received in payment from the purchasers; that the purchase by the administrator was void, because he had no interest in the estate; and that the probate judge, being himself one of the purchasers, had no jurisdiction to confirm the sale. All the purchasers were made defendants to the bill, and the prayer was, that the sale might be set aside; that an account 6 VOL. III. [Balkum v. Satcher.] might be taken of the rents and profits; that the possession of the lands be restored to the complainants, and they have a money decree against the defendants; that the lands be sold for distribution, and for general relief. The defendant Balkum filed a separate answer, which was adopted by the other defendants. He admitted the material facts, as above stated, but denied all fraud in fact or in law; pleaded "in bar or preclusion of any and all rights, remedies, and relief sought by said bill," a former decision of said probate court, refusing to set aside said sale on the application of the complainants, and the affirmance of that decree by this court, as shown by the printed report in the case of Satcher v. Satcher (41 Ala. 26); and demurred to the bill, for want of equity, for multifariousness, and for misjoinder of parties. The chancellor overruled the demurrer, and, on final hearing on pleadings and proof, rendered a decree for the complainants, setting aside the sale, ordering the lands to be again sold by the register, and imposing the costs on the defendant Balkum. From this decree said Balkum appeals, and here assigns it as error. JAS. L. PUGH, for the appellants, cited the case of Satcher v. Satcher (41 Ala. 26), which, he contended, was conclusive as a bar, and unanswerable as an argument on the law and facts. W. C. OATES, contra.-1. As the decree of a rebel court, the order of sale was not revisable on appeal by the courts of the present legal government. Martin v. Hewitt, 44 Ala.; Mosely v. Tuthill, 45 Ala. 650; Scott v. Jones, 5 How. U. S. 2. Said order of sale, and the proceedings connected with it, abound with irregularities and departures from law, against which Ordinance No. 40 of the constitutional convention intended to grant relief; and as that relief could not be granted by the probate court, a bill in chancery was the proper remedy. Mosely v. Tuthill, 45 Ala. 650. 3. The confirmation of the sale by the probate judge, who was himself a purchaser at that sale, rendered it absolutely void, since no man can be a judge in his own cause; and the purchase by the administrator was equally void. Calloway v. Gilmer, 36 Ala. 354; Michoud v. Girod, 4 How. U. S. 503. 4. The facts alleged and admitted constitute a fraud in law, if not in fact, against which a court of equity will always grant relief. B. F. SAFFOLD, J.-The appellees are the heirs-at-law and distributees of the estate of Herrin M. Satcher. The |