
    Chamblee et als. v. Cole.
    
      Petition to vacate Void Decree.
    
    1. Vacation of void decree; subsequent term; power over valid decree. — Every court has the inherent power to vacate its void decree even at a subsequent term, and should do so on motion; but if valid its power to alter at a subsequent term is limited to the correction of errors and omissions apparent upon the record.
    2. No presumption as to validity of decree of court of limited jurisdiction. — No presumption is indulged in favor of the decree of a court of limited-jurisdiction; all jurisdictional facts must appear upon the record.
    3. Exemption to loidow and minor children before administration; jurisdiction of probate court. — The statute alone confers upon the probate- court authority to set apart to the widow and minor children exemption, before administration, and in .the exercise of that authority it is a court of limited jurisdiction.
    4. Petition to set apart exempton to a widow and. minor children; jurisdictional averments. — A petition to set apart to a widow and minor children a homestead exemption before administration under the statute (Code. § 2097, Code of 1886, § 2562, and Acts, 1886-87, p. 112], whieli’ simply avers that at the time of the decedent’s death, “he owned .without .any incumbrance a plantation- which doeg not exceed 160 acres or two thousand dollars in. value,” does not contain the necessary statutory-averments sufficient to confer jurisdiction upon the probate court, and a decree rendered thereunder setting apart the homestead is' "absolutely void since the statute requires that the petition should allege that all the real estate left by decedent does not exceed" 160 acres in area an'd" two thousand dollars in -value.” -' '
    Appeal from tlie Probate Court of Jefferson. ■ •
    I-Iearct before the Hon. J. P. Stiles'.
    - This was a proceeding by petition in theyourt below to vacate a decree of said court- rendered at a former trial by which a homestead exemption was set apart to a widow and minor children before administration. The petition was filed by appellee, who alleges she is an heir at law of the decedent. It was alleged and the record in the probate court disclosed that the petition upon which the decree sought to he vacated was based, contained only ,the following allegation as to the real estate owned by tbe decedent at .the time of his death, to-wit: “He owned, without any incumbrance, a plantation which does not exceed 160 acres, or two thousand dollars in value.” Upon the hearing of this petition a decree was rendered vacating and annulling the former decree by which the homestead exemption was set apart. From -this decree appellants appeal, and assign the rendition thereof "as error.
    John W: Chamblee, for appellants.
    Lane & White, contra,
    
    cited Brooks v. Johns, Adnvr., 119 Ala. 412.
   TYSON, J.

It is well settled that where a decree, void for want of jurisdiction, has "been rendered, the court rendering it. possesses the inherent "power; and should on motion, vacate said decree. It is a nullity and the court may at any subsequent term vacate it. 3 Brick. Dig. 584, § 124. If not void, the court has no power to alter, vary or annul it after the expiration of the term at which it .was, rendered, except for clerical error or omission on evidence shown by the record. Baker v. Barcliff, 76 Ala. 414; Buchanan v. Thomason, 70 Ala. 401.

It is equally as ’well settled that Where the court, whose jurisdiction is questioned, is one'of 'limited jurisdiction, it musit appear from the face of the proceedings that it has. acted within the. scope of its. jurisdiction. In other words, no presumption is indulged, from the mere exercise of jurisdiction, of the existence of jurisdictional facts. They will not be inferred, but must affirmatively appear from the record. — Pettus v. McLannahan, 52 Ala. 55; Joiner v. Winston, 68 Ala. 129. To quote the language to be found in Robertson v. Bradford, 70 Ala. 387: “Nothing is presumed to be within the jurisdiction of a court of limited jurisdiction except that "which is so expressly alleged and 'affirmatively appears from the record.”

The jurisdiction of the probate court to set apaxfi to a widow and minor children exemptions before administration, 'Code, § 2097; Code' of 1886, § 2562, and Acts, 1886-7, p. 112), "is conferred by statute alone and in the exercise of that jurisdiction it is a court, of limited jiirisdiction. It is necessary," therefore, that the jurisdictional facts affirmatively appear from the. record.

. The petition filed .by the widow in this case, upon which the probate court acted and which is the basis of the-decree entered by that-court, is subject to the same infirmities as was the one in the case of Brooks v. Johns, Admr., 119 Ala. 412. On the authority of that case, the proceedings here involved, must be held to be void. Being void, the court committed no error in vacating them.

Affirmed.  