Craft v. Cowart , 123 Ala. 110 ( 1898 )

HARALSON, J.

The order of sale in favor of Gay-lord B. Clarke, as administrator of B. H. Stout, was made in the probate court, on the 15th February, 1892. Said Clarke died in June, 1893, and the appellant, John Craft, was appointed administrator dc bonis non of the estate of B. H. Stout, on the 13th of August, 1898. It also appears that the real estate which was ordered to be sold, by the said decree of February 15th, 1892, has never been executed, that said lands were never sold by said Clarke as administrator, nor by any other person under said decree, and no effort has been made to have said decree executed, until the 27th of February, 1899, when said administrator dc bonis non filed a motion in said probate court asking the court “to direct him to proceed with the execution of said decree in accordance ■with the terms and directions thereof.” The court refused the motion, and from the order of refusal this appeal is prosecuted.

The application made by the administrator cle bonis non, in this case for t.he court to direct him to proceed to execute the decree of sale rendered in favor of the administrator in chief, his predecessor, though not purporting to be a motion for a revivor of-said decree of sale in his name, was in substance nothing more nor less than such a motion.

Assuming without deciding that such a decree can be rendered in favor of and in the name of the administrator cle bonis non, still we must hold that the action and judgment of the lower court refusing to grant the plaintiff’s motion to revive and directing him to proceed to execute the same, was not such a judgment as will support an appeal.—Garrison v. Burden, 40 Ala. 513.

The appeal must be dismissed.