Berry v. Manning

• Decision Date: 07 June 1923
• Docket Number: 8 Div. 500.
• Citation: 96 So. 762,209 Ala. 587
• Parties: BERRY ET AL. v. MANNING ET AL.
• Court: Alabama Supreme Court

96 So. 762

209 Ala. 587

BERRY ET AL. v. MANNING ET AL.

8 Div. 500.

Supreme Court of Alabama

June 7, 1923

Appeal from Circuit Court, Colbert County; Chas. P. Almon, Judge.

Action in ejectment by Wade Berry and others against Arthur Manning and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

Simpson & Simpson, of Florence, for appellants.

Kirk &amp Rather and Jackson & Deloney, all of Tuscumbia, and Mitchell & Hughston, of Florence, for appellees.

GARDNER J.

Suit in ejectment by appellants against appellees; plaintiffs and defendants claiming title through a common source.

One Jordan Berry died on August 7, 1916, leaving a widow and no minor children. At the time of his death he owned and occupied as a homestead the property in question. The plaintiffs are children of Jordan Berry by his first wife. There were no children by the second wife, though this second wife had children by a prior marriage; they or their representatives being defendants in this cause.

On October 9, 1916, Marcella Berry, the widow of Jordan Berry filed her petition in the probate court of Colbert county praying that the land in litigation be set aside to her as exempt as a homestead. In this petition it was alleged that petitioner, Marcella Berry, was the widow of Jordan Berry who died August 7, 1916, leaving surviving him his widow and the children therein named, each of whom was over 21 years of age. The land consisting of 80 acres was described by government numbers-its value being placed at $1,600; and it was averred that this land was occupied by decedent as a homestead, and constituted all the land owned by Jordan Berry at the time of his death. The personal property set forth in the petition is by agreement omitted from the statement of facts. The petitioner further alleged that the real and personal property owned and possessed by Jordan Berry at the time of his death did not exceed in value the exemptions allowed in favor of the widow; that he left no minor children; that no administration has been granted on his estate, and that 60 days have elapsed since the date of his death. The prayer of the petition was in proper form.

Pursuant to this petition, commissioners were duly appointed, and the property appraised, the appraisement disclosing the property was in area and value less than that allowed as exempt; and the report setting aside the same to the petitioner, the widow, was confirmed.

The report of the appraisers was filed on November 9, 1916, and the decree confirming the same was rendered November 19, 1916. The report should have lain over 30 days for exceptions, and it was error to enter the decree of confirmation at the expiration of 10 days. The question to be determined upon this appeal, therefore, is whether or not this is such an error as to vitiate the proceedings, and render them null and void upon this collateral attack. It is well settled that a proceeding of this nature is a proceeding in rem. Douglas v. Bishop, 201 Ala. 226, 77 So. 752; Headen v. Headen, 171 Ala. 521, 54 So. 646.

The petition in this cause contained the averment of every fact essential for acquiring jurisdiction by the probate court this is not questioned. It is well established by numerous decisions that if a judgment or decree is not void for want of jurisdiction, and its invalidity is not apparent on its face, neither the court rendering it at a term subsequent to its...