The appeal in Gant v. Gilmer, reported in 245 Ala. commencing at page 686, 18 So.2d 542 was by Gant as administrator cum testamento of the estate of W. C. McCarty, deceased, et al., from a decree rendered by the circuit court, in equity, allowing a claim filed by J. H. Hays, as guardian, in the probate court before the administration was removed to the circuit court, in equity, for and in behalf of Mary Frances Hays, a minor, rendered on the 13th day of January, 1944. Said decree reciting: "This cause coming on to be heard on a contest of claim filed against the estate by Mary Frances Hays, a minor, which was filed by her guardian J. H. Hays. Since the filing of the claim, and on the 3rd day of January, 1943, the said claimant attained her majority and has since married to one Max Gilmer." On the hearing of said contest on November 18, 1938, Mary Frances Hays by her solicitors filed demurrers to the contest, and on the same day filed a motion to strike said contest. With the submission of the appeal Mary Frances Hays Gilmer, as the appellee, filed a motion to dismiss the appeal on the grounds, among others, that Gant, as administrator cum testamento, was without authority to prosecute the contest filed by W. C. McCarty, Jr., as administrator of the estate, and that said Gant, as administrator cum testamento, was not a party to the contest. The motion to dismiss the appeal was overruled by the court and the decree allowing the claim was reversed because of the failure of the appellee, claimant, to prove the existence of the judgment which constituted the basis of her claim; and this court, as it had a right to do, rendered a judgment here denying the claim. Code of 1940, Title 7, § 810.
Appellee applied for a rehearing and said rehearing was overruled. After the adjournment of this court for that term the power and jurisdiction of the court over that judgment came to an end and it became final. Roebling Sons Co. v. Stevens Elec. Co., 93 Ala. 39, 9 So. 369.
Said judgment, which was pleaded in the instant case as res judicata, was conclusive between the parties not only as to the issues litigated, but all that could have been litigated as to that claim. Gilmer v. Gant, Ala.Sup., *Page 450 24 So.2d 414;1 Gilmer v. Gant, 246 Ala. 671, 22 So.2d 176; Drinkard v. Oden, 150 Ala. 475, 43 So. 578.
I, therefore, concur in the affirmance of the judgment in this case.
1 Ante, p. 347.