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  Alexander v. Bryan/Opinion of the Court
  < Alexander v. Bryan
  753368Alexander v. Bryan — Opinion of the Court
  The equity decree of 1871 gave to Mrs. Bryan no greater right to sue the surety than she had before. It was a money decree only for the plaintiffs in it, conferring on her, as a defendant, the right to apply in the suit for like relief. She could obtain no relief in the probate court, as was held in Bryan v. Horn, 42 Ala. 496, because that court had no jurisdiction after the settlement of the administration and the resignation of the executor in 1864. Her decree of 1877, in the equity suit, was the first judicial ascertainment of the default of the executor. That decree dismissed her petition as against the surety, 'but without prejudice.' This showed that it was not dimissed on the merits, but for some defect which was allowed to be obviated by another suit. Co. of Mobile v. Kimball, 102 U.S. 691, 705.
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