Henderson Hardy et ux. v. Samuel J. Gholson, 26 Miss. 70

Mr. Justice Handy delivered the opinion of the court. This case is brought up by appeal from the probate court of Monroe county. In February, 1851, the appellants filed their petition in the probate court, as distributees of Albert G.

Greenwood, against the appellee, alleging that the appellee, as administrator of Greenwood, at the April term of that court, 1842, had rendered his final account and been discharged; that the order allowing the account and discharging the administrator is void, for want of such notice as the law required ; that the account contained large credits, which were improper and unjust, &c., and praying that the account and settlement be vacated, and for a new settlement.

The appellee filed his plea, stating that he was not then administrator of the estate, and setting up an order of the probate court, made at April term, 1842, showing that the appellee made applicatidn at that term to surrender his administration, which, upon due proof made to the court that' due and legal notice thereof had been given, was, granted, his account of final settlement allowed, his trust surrendered, and he discharged. To this plea there was a demurrer, which was disallowed, and the petition dismissed. Hence the case is brought to this court.

The dqmurrer in the court below was unnecessary and unwarranted in practice, as every objection to the plea which could have been raised under it could have been taken by setting down the plea for hearing. Considering the case, as presented on the merits of the petition and plea, the court acted properly in dismissing the petition. The plea set up a final account, and a'surrender of his trust by the administrator, and a discharge by the court, “ upon its appearing to the satisfaction of the court, from'due proof, that due and legal notice had been given of the application,” &e., in bar of the petition.

This was a decree of a court of competent jurisdiction, and every presumption is to be indulged as to the correctness of the facts on which it was founded and which appear of record. The record proves itself, and cannot be questioned, except on writ of error or appeal. 10 Peters, 472. The order of the court, reciting that due and legal notice had been given and was made manifest to the court, was conclusive, and could not be controverted.

Nor could this petition be regarded as a bill of review under the act of 1846, because it does not purport to be a bill of review, and has not the essential requisites of such a proceeding, and because the decree in question was rendered before the passage of the act of 1846, and that act is not applicable to such cases. Austin v. Lamar, 1 Cushm. 190. The decree is, therefore, affirmed.