
    James H. Robinson vs. Samuel J. Gholson, Administrator of A. G. Greenwood, deceased.
    Where a citation, by the direction of the probate courtj was issued against an administrator, and he appeared in answer to the citation, and was discharged therefrom by the court, on the ground that he had previously made a filial settlement of his administration, the propriety of the order discharging the citation cannot be inquired into by the high court of errors and appeals, on an appeal from the order by a distributee of the estate; the citation being issued at the instance of the court, could be discharged by the court; the reasons given by the court for its discharge, form no part of the decree.
    And if the administrator has not been legally discharged, or a final settlement made by him, any distributee or person interested in the estate can, notwithstanding the discharge of the administratbr from such citation by the court, compel the administrator to such a settlement.
    And upon the discharge of an administrator from a citation issued at the instance of the probate court, the interests of no one are affected.
    On appeal from the probate court of Monroe county; Hon. Nathan L. Morgan, judge.
    On the 18th day of July, 1846, a general citation was issued by the probate court, on the order of the court, without any application therefor by any party interested, requiring Samuel J. Gholson, administrator of A. G. Greenwood, to appear and make final settlement of his account as administrator.
    The defendant appeared and moved to be discharged from the citation ; and on that motion, read an order made at the July term, 1840, allowing him to resign his letters on giving notice and making settlement; an order at the September term, 1840, on his application, allowing him to withdraw his application to resign ; and a subsequent order, made at the April term, 1842, reciting another application by him to resign his letters and surrender, so far as he had administered, and reciting that he had made “ due proof that due and legal notice had been given by him of his application, and that no cause had been shown against the same; and thereupon ordered, that he be permitted to resign and surrender, on- settlement being made. That defendant then made settlement of his administration, surrendered the effects, and resigned his administration — whereupon the court, having examined the account of final settlement, ordered the same to be allowed and recorded, and that defendant be discharged from further administration.”
    Which orders having been read and the case argued, the court took time until a subsequent term, and then sustained the motion, on the ground that the defendant had already made final settlement.
    The appellant, claiming to be a distributee of the estate, excepted, and embodied these matters in a bill of exceptions, and appealed.
    
      Davis, for appellant.
    1. The final settlement was made on the 19th April, 1842, about two years after the orders were made, and those orders cannot be claimed as a foundation. The inquiry then arises in relation to whether the decree of 1842 is void or voidable only; if void, it is manifest that the decision of the court in overruling the motion is erroneous, and ought to be reversed.
    2. The constitution provides that a man shall not be deprived of his property without due process of law. The record does not show any process directed to the creditors or legatees of Greenwood, notifying them of the intention of the administrator to make final settlement.
    In Hollingspiorth v. Barbour, 4 Peters, 466, the court at page 475, say, “ It is an acknowledged general principle, that judgments and decrees are binding only upon parties and privies.”
    In Simmons v. Wood, 6 Yer. 522, the court say, “ There is no evidence that the heirs of Whitesides had been notified to appear, and a judgment without notice to the heirs is void, the court having no jurisdiction of the person of the defendants.” Vick v. Vicksburg, 1 How. 444, 445.
    In Campbell et al. v. Brown and Wife, 6 How. 114, the court say, “ That it must be shown by the record, that the court had jurisdiction of the party, either by service of process or publication, where that is authorized. Now there is nothing in the record or proofs that shows any process, or the service of any; nor does it appear that publication was made; this being true, the decree of final settlement upon the authority of the last mentioned case, is void.”
    The act of 1826, H. & H. 416, provides, “ that upon the application of an administrator to surrender his letters of administration, it shall be allowed by the court, by giving sixty days notice by advertisement, at the door of the court house, and by publication in some newspaper of the state.” And this, according to the authorities above referred to, must appear by the record to have been done. 6 How. 114.
    The act of 1841, H. & H. 403, prescribes the manner of making final settlement by administrators of their account, not one provision of which has been complied with, as will be seen, by the court by reference to said act.
    This settlement of 1842 was made in vacation, and not in term time, the regular term being at that time the first Monday of April, and not the 19th, the time when the settlement was made.
    
      Potter, for appellee.
    This appeal cannot be sustained.
    1st. Robinson was not a party, directly or indirectly, to the proceedings below; the citation was not issued at his instance, and the discharge of defendant from that citation did not, in any manner, affect his rights as a distributee or otherwise. The citation was issued on the mere motion of the court, and the judge might discharge the defendant without any showing whatever. If Robinson desires to contest the previous settlement, he can institute due proceedings upon which defendant would be put to proof that the settlement was made upon due notice to those interested.
    2d. There is no record in this court on which plaintiff can raise any question whatever. There is no law by which a party can try a probate order upon a bill of exceptions, and. there should be none; for all proceedings and proofs are entered upon the minutes, and become of record in the cause. The probate record contains evidence to justify the former settlement, of that settlement is null; and that record should have been brought, with the orders and proofs properly embodied therein, and upon that record the case would be tried here. Now the bill of exceptions shows indirectly that due notice had been given of the previous settlement; it sets forth the order of settlement and resignation, which recites that due proof had been made to the satisfaction of the court, that due and legal notice had been given ; that proof of notice was on file in. the papers of the cause, and before the judge, on trial of the motion, although it was not read or introduced by defendant. If the proper record had been brought, that proof would appear. The bill of exceptions should have shown, that there was no proof on file that the previous settlement was made without due citation and notice.
    3d. On the trial of the motion made by defendant to be discharged from the citation, the recital in the order offered in evidence, that due notice had been given, was sufficient to satisfy the court that the settlement was made upon due notice, and that defendant should be discharged. Even as against a dis-tributee, the recitals contained in an order might be held to be evidence, prima facie, of the fact recited.
    It may be that the whole inventory was surrendered — the whole property that came to the hands of the administrator — the account should have been brought up.
    4th. There is nothing to show the order was invalid ; probate courts are allowed to hold special terms. H. & H. 472, § 16. The probate record in this cause would show a special term duly holden.
   Mr. Justice Thacheb.

delivered the opinion of the court.

A citation issued from the probate court of Monroe county, upon the 18th day of July, 1846, directed to Gholson, administrator of Greenwood, requiring him to make a final settlement. At its return term, Gholson moved to be discharged from the citation, which motion was subsequently sustained by the court upon the ground that the administrator had already made and rendered a final settlement. The record shows a bill of. exceptions, taken by the appellant in the capacity of a distributee of the estate of Greenwood, which sets forth, that upon the hearing of the aforesaid motion, the appellee produced an order of the probate court, at its July term, 1840, allowing him to give the legal notice preliminary to a resignation of his letters of administration, an order at the September term, 1840, allowing him to withdraw his application of resignation of his letters of administration, and an order at its April term, 1842, permitting his resignation of said letters, and setting forth that the said administrator had made due proof that legal notice had been given by him, and that no cause had been shown against his application to resign said letters, which had also been duly made. The bill of exceptions also shows, that the said appellee resigned his said letters, and presented his final settlement at the term last aforesaid, which was examined, allowed, and ordered to be recorded.

The decree in this case is simply an order discharging an administrator, upon his motion, from the requisitions of a citation issued, not upon the application of any person interested in the estate, but by the order of the court. The reason given by the court for its decree, constitutes no part of the decree. It is not a decree of final settlement, nor of discharge of the administra-' tor from his letters of administration. If, in point of fact, there has never been a legal discharge of the administrator, nor a final settlement made by him of the estate; any distributee or person interested in the estate, can still compel such a settlement. The appellant was not properly a party below, nor could his interests be affected by the decree.

Decree affirmed.  