The comet., 1879-11-29
SUPREME COURT DECISIONS,
Rei0+ted weekly by j. w, Je"Hi"s'
ATTORNEY az S'hw.
OcTOBER TERM, 1879.
J. #. HENDRIoKs, ct al
VS..
N. ~. PUeH, Admir-.

J. F. HrNDR1oKs, ct al,
VS..
N. Il. PUGH, Admir-.
Appeal from the Chanoery oo1rs n, o.
Yazoo county, Hon. E. G. Pey'oh' oA"-
cellor.
]. f. Hendricks, executor OF u. W.
Hendricks, sought and obtained au'hori'y
from the Probate Court of Yazoo county,
in November 1866, to sell the lands OF MS
testator for the payment of debts An a',
tempt to carry out the decree was made ou'
the sale failed to be effective, because Oh JUG
inability of the purchaser to comply Will
tbs terms thereof. In 1868 the executor
nresented another petition to the Court re-
citing the former proceeding, representing
that owing to the increase OF the deots anu
the ranid decline in the value of the land,
the entire estate had become insolVent, anu
pravine that it might be SO declared, and
administered as such. On the 23d OF
March. 1868, decree of insolvency passed.
and the land was ordered to be sold. Inc
executor and the heirs of the testator, (the
latter of whom consisted of one adult ana
one minor sony were made parties
both to the proceedings for sale TO
nav tbe debts and to the insolven'
proceedings, but the return of process
in both cases was defective. The executor
took no steps to execute the decree
cree of sale and for his failure in this re-
oard. as we'll as on account of his lnsuf'
fiicient bond, he was by the Chancery Cour
(as successor of the Probate Court on Pc
tition of the creditors of the estate, re-
moved from Office and N. L. Pugh aP'
nointed administrator, d. b. n. c. i. a., Oh
the 18th April. 1877. Pugh at once sough'
authority from the Court to execute the de-
cree of sale granted to his predecessor bu'
the Chancellor being of opinion that these
DEGREES were void, because of the lnsuf
ficient service of process on the heirs, re-
fused to grant the authority, andion.th lotf
of April. 1877, entered an order vacating ano
annulling them. Two years later, toswit
in 1879, Pugh renewed his application fol
leave to execute the DEGREES, or for new
decree of insolvency, and the decision OF
this Court, in the case of BurrHss VS., Bur
russ, 56 Miss, having then been announc-
ed, to the effect that no notice to minors
was necessary in Probate Court sales, th'
chancellor reversed his former ruling, anc
ordered the administrator to proceed tt
execute the decree of insolvency by salt
of the land. From this order the helr
have appealed, and upon their request, BY
order of the court below, this appeal Ii
made to relate back to and embrace the de
crees of 1866 and 1868.
CHALMERS, j.,
Held
1. 1t is argued by counsel for appellee
that the appeal cannot bring these DEGREES
| into review, because more than three years
having ELAPSED since their rendition, an ap
neal therefrom is barred by the statute O.
| limitations. But no plea of the statute hay
ing been filed in this Court, this objection
cannot be noticed.
2. A summons to answer on day whlct
is then passed, gives no Jurisdiction, and
decree thereon is void.
8. A decree of insolvency is binding OF
minor heirs, though service on them is de-
fective. 1t would be erroneous only, ane
not void
4. The decree being simply. erroneous
and not void, (and erroneous only as to on'
of the heirs, } the Chancery Court coulc
not in this manner sit in judgment upor
the erroneous rulings of the Probate
Court, which, until reversed by this Court
or attacked by bill of review, was conclu
sive between the parties, and its order Of
April 18th, 1877, by which it assumed tt
vacate and annul the decree of insolvency
was void. Decree reversed.