Steele, Guardian v. Donehoo, Admr.

Steele, Guardian v. Donehoo, Admr. Proceedings in Probate Court for the Final Settlement of an Administration. 1. Decree of probate court in settlement of an administration; when will not support an appeal. — Where a probate court has acquired jurisdiction of the final settlement of the administration of an estate, and upon its being made to appear that the administrator had filed a bill to remove the administration and settlement into the chancery court, a decree or order by the pz-obate court that further consideration of the cause will be suspended to await the action of the chancery court, is not such a final decree or order as will support an appeal. Appeal from the Probate Court of Blount. Tried before the Hon. T. H. Davidson. The facts of the case are sufficiently stated in the opinion. Emery C. Hall and Robinett & Allgood, for appellants. Inzer & Ward and W. F. Dioicinson, contra. [MAJORITY — HEAD, J.] HEAD, J. The probate court of Blount county, after acquiring jurisdiction of the final settlement of F, G, Donehoo’s administration of the estate of S. H. C. Johnson, deceased, upon the suggestion of the administrator, in the form of a written plea, that he had filed a bill in the chancery court to remove the administration and settlement into that court, declined to proceed further with the settlement, and made an order “that the further consideration of this cause be suspended to await the action of the chancery court.” This appeal is from that order. It is not a matter of- doubt that the order appealed from is not a final order, judgment or decree which will support an appeal. When a court wrongfully refuses-to exercise its jurisdiction of a given matter, it will be compelled thereto by mandamus, and an appeal does not lie from the refusal. — Ex parte Jones, 1 Ala. 15; Brennan v. Harris, 20 Ala. 185; Shadden v. Sterling’s Admr., 23 Ala. 518; Phillips v. Peteet, 35 Ala. 696; Leslie v. Tucker, 57 Ala. 483; Ex parte Dickson, 64 Ala. 188; Ex parte Ala. Bar Association, 92 Ala. 113. We are without jurisdiction of the appeal, and it must be dismissed,- without any discussion of the propriety of the probate judge’s action in suspending the settlement. Appeal dismissed.