
    David R. Wingate, Administrator of Jordan Morgan, deceased, vs. Elias Wallis et al.
    A court of probate cannot, in vacation, compel an administrator to appear before it and give additional security upon his administrator’s bond ; and if it cite him to do so, the proceeding is coram non judice, and therefore void.
    A judge of probate has no authority to issue process, to command the sheriff to take property of an intestate out of the hands of, an administrator, even though it be alleged that the securities upon the administrator’s bond are not good, and that he is about to remove the intestate’s property out of the state.
    If such a process is issued it is void, and the sheriff cannot collect any costs, if he execute the same.
    Where the proceedings and process in a cause are wholly void, no costs can be collected from the defendant.
    This cause is brought into this court by an appeal from the probate court of Hancock county. ■ ,
    The defendant in error, Elias Wallis, in behalf of himself and others, heirs of Thomas Wheat, deceased, petitioned the probate court of Hancock county, stating that they were heirs of Thomas Wheat; that Jordan Morgan had been the administrator of Thomas Wheat; that Morgan died without settling his accounts, and making distribution, and that the estate of Wheat was worth $20,000 ; that David R. Wingate took out letters of administration on the estate of Jordan Morgan, deceased ; that he had removed some of Morgan’s property out of this state; and that Wingate’s securities,were insufficient to secure the petitioners.
    The prayer of the petition was, that Wingate might be ordered to give other good and sufficient security.
    Thereupon an order was made by the probate court, that Wingate should come before the judge in vacation, and give additional security.
    Before that citation was issued, Elias Wallis and others filed another petition in the same court, in which they state, that Morgan died possessed of a large estate ; that letters of administration had been granted on his estate to Wingate ; that Wingate had removed some of-the negroes belonging to Morgan’s estate out of this state, aud was about to remove the residue; that they bad been advised they were heirs of Morgan, and that Wingate’s security, on his administrator’s bond, was not sufficient. They prayed for extraordinary process, and for general relief.
    The judge of probate, under his private seal, issued process to the sheriff, commanding him to take possession of all the slaves belonging to Morgan’s estate, and keep them until further order of the probate court.
    David R. Wingate gave a bond, in accordance with the prayer contained in the first petition, and the judge of probate ordered the sheriff to return the slaves to Wingate.
    Wingate moved to quash the process issued by 'the judge of probate, and the motion was overruled.
    At the September term, 1842, of the probate court, the sheriff moved to tax the costs against the estate of Jordan Morgan, for executing said order or process ; which motion was allowed, and costs to the amount of $104 were taxed against the estate of Morgan ; and on this order an execution issued against Win-gate, as administrator.
    At a subsequent term of the probate court, Wingate moved the court to quash the execution, which motion was overruled, and Wingate obtained a writ of error.
    
      Montgomery and Boyd, for plaintiff in error.
    ■ We are at a loss to ascertain how'these two cases became one. They appear to have no other connexion, than .that they are proceedings in the same court, against the same defendant.
    The first petition was on behalf of creditors, for a rule on the administrator to give additional security. We have been unaable to find any statute, giving this remedy to a creditor of a deceased. The statute in How. & Hutch: 398, sec. 45, only gives this remedy to a person interested in the distribution of the estate, which cannot mean a creditor.
    
      It was error to order the administrator to appear before the judge in vacation. It was a subject to be acted on by the court, and not the judge at chambers. But as this unreasonable order was complied with, it may be contended that it is now too late to raise the objection. We conceive it is competent to reverse an erroneous judgment, or decree, as well after it is executed as before. A reversal will operate to exonerate the parties from the bond, which may be of as much importance to the plaintiff in error, as the recovery of his property from the officer charged with the execution of the extraordinary process, about which we will speak more fully directly. He may have had to indemnify these sureties, and has been called on to pay the costs of this novel and extraordinary proceeding, which are grievances sufficient to create a desire to reverse the judgment.
    The petition of E. Wallis and others, for extraordinary process, was a lame attempt to bring the cause within the operation of the statute, How. & Hutch. 415, sec. 102. But it was clearly not within the spirit or letter of the statute. The petitioners do not aver that they are .heirs, or distributees, of Jordan Morgan’s estate, but that they are advised they are heirs, &c. The petition does not show, that the removal of the property was designed to defraud the heirs of the estate, nor does it set forth the property about to be removed. The precept, or extraordinary process, was erroneous ; the probate court is required to have a seal, which shall be affixed to every writ and process of any kind issued from the court. How. & Hutch. 469, sec. 4. The language of the whole section, which confers this power on the probate judge, shows plainly the legislature used the term judge as meaning the same thing as court. It first contemplates that cause should be shown to the court, but afterwards makes it the duty of the judge to do every act required ; and among others, requires of them to revoke the letters of administration, &c., and grant administration, &c., acts which can only be done by him while presiding. From which we infer the legislature intended all the powers conferred by said statute should he done while presiding. The statute is far from plain and intelligible. No literal construction can be given if, it shows the hand of an inexperienced writer. But when we apply other well settled rules, we can have no difficulty in establishing the position, that the proceedings in this case do not come within its provisions.
    In the first place, ibis a well settled rule, that no proceedings can be had in the probate court against an administrator, &c., without notice, express or constructive. It may he contended that this is a preliminary proceeding, like granting an injunction, and notice is not necessary before the writ issues : but it will be seen that the statute uses the same language to confer on the judge the power to revoke the letters and grant administration. To give a literal construction to the act, it would appear that the precept issued by the judge was to perform the manifold task, of commanding the sheriff to seize the estate and dispossess the administrator and revoke his letters, and commit the administration to another, without further ceremony. Now if all this can be done without giving the administrator a hearing, and that, too, in favor of persons who have not the boldness to assert that they are the heirs of the deceased, we are unable to conceive on what rule it is predicated.
    The effect of this erroneous proceeding was to impose a bill of costs on the administrator, which he deems it his duty to obtain relief from, if practicable.
   Mr. Justice Thacker

delivered the opinion of the court.

Appeal, from the probate court of Hancock county.

Elias Wallis, for himself and others, heirs of Thomas Wheat, deceased, filed a petition in the probate court, alleging that the administrator of Wheat, one Jordan Morgan, had died without making a settlement or distribution of the estate; that Morgan’s administrator, Wingate, had removed some of Morgan’s property out of the state, and that his sureties upon his administration bond were insufficient to secure the petitioners. 'The petition prayed for other and good security. Upon this petition an order Avas made, citing Wingate to appear before the judge in vacation, and give additional security. Pending the issuance of this citation, Wallis and others filed another petition, setting forth statements similar to the previous petition, and charging that the administrator, Wingate, was about removing still more of the property of his intestate out of the state, and prays therein for extraordinary process to restrain him in the premises. The judge, upon this petition, issued a process, under his private seal, commanding the sheriff to take possession of the property described, and to hold the same subject to the further order of the court. The record then shows a bond executed by Wingate, in compliance with the prayer of the first petition, and an order of the judge to the sheriff to return the property to Wingate. A motion afterwards made by Wingate’s attorney, to quash the process issued by the judge, rvas overruled. At a subsequent term the sheriff moved the court to tax.h.is costs, which was allowed. A motion, by Wingate, to quash the execution issued for these costs having been overruled, is now claimed to be error in -this cause.

The record, in this case, shows upon its face that the whole proceedings were highly irregular, and altogether unauthorized by law. The various orders and process made and issued by the judge in vacation, were coram nonjudice, and therefore nul-lities.

The judgment of the court below is therefore reversed, and this court, pronouncing the judgment which the probate court of Hancock county should have done, directs that the said execution be quashed.  