Brantley v. Brantley, 4 Div. 700
| Decision Date | 22 January 1953 |
| Docket Number | 4 Div. 700 |
| Citation | 63 So.2d 29,258 Ala. 367 |
| Parties | BRANTLEY et al. v. BRANTLEY. |
| Court | Alabama Supreme Court |
Oliver W. Brantley, Troy, for appellants.
C. L. Rowe, Elba, J. W. Brassell, Phenix City, and Brown & McMillan, Opelika, for appellee.
Grounds 20 and 30 of the demurrer are as follows:
20. It does not appear that the individual respondents herein constitute all the heirs and next of kin of said deceased.
30. It is not made to appear whether the said J. G. Brantley was survived by any children or descendants of deceased children and if so whether respondents are among them.
This appeal is from an interlocutory decree overruling the demurrers of the respondents, Mrs. Mildred Irene Richardson, Marcie Brantley filed by her guardian ad litem, who separately demurred, James Brantley and Charles F. Brantley, who jointly demurrer to the bill, all of said demurrers going to the bill as a whole.
After leave to sever in the assignments of error was granted the case was submitted on briefs by agreement of the parties on November 5, 1952. On the day of the submission the appellee made suggestion of diminution of the record and filed motion for the issuance of certiorari to complete the same, but did not include this motion in the submission. The parties have filed briefs in support of and against the sufficiency of the showing to warrant the granting of certiorari and have agreed that this question may be considered by the court. The motion or suggestion states:
'(2) That the record in this cause is incomplete and imperfect in that there is omitted therefrom those bench notes of the Trial Court which recite that this appellee made an oral motion in said cause on, towit, the 4th day of February, 1952, which motion was accepted by the Trial Court and taken under advisement, and which motion had for its object the consolidation in the trial court of Case Number 3843 of the Circuit Court of Pike County, Alabama, in Equity, a cause entitled 'Callie E. Brantley v. James E. Brantley and others' with Case Number 3833 of the Circuit Court of Pike County, Alabama, in Equity, a cause entitled 'In the Matter of the Will of J. G. Brantley, Deceased'; that this oral motion was made and the bench notes of the Trial Court entered prior to the day of the date of the rendering of the decree on demurrer here appealed from; that under the provisions of Section 827(1) of Title 7 of the Code of Alabama, 1940, as amended, this motion and these bench notes are properly includable in the record of said Case Number 3843; and that the record in said Case Number 3843 as now before this Court is imperfect and incomplete by reason of the omission of these bench notes and this oral motion of the appellee.'
The statute cited in support of the motion abolishes bills of exception in the trial of cases at law and substitutes therefor a transcript made by the reporter of the proceedings, nor of record, and seems to be inapposite to the question by the appellee's motion. Code of 1940, Title 7, § 827(1), p. 127, Cum.Sup.1951.
The subject matter of the motion, as stated in appellants' brief, is the bench notes of the trial judge entered on the trial docket in these words and figures: The brief further states,
The purpose of bench notes entered by the trial judge is to give direction to the clerk of the court to enter the judgment of the court on the minutes, and, if sufficient in substance, are such quasi evidence as will support motion to enter judgment nunc pro tunc. Mt. Vernon-Woodberry Mills v. Union Springs Guano Co., 229 Ala. 91, 155 So. 716; Cooper v. Owen, 230 Ala. 316, 161 So. 98. But such bench notes are inefficacious to aid the court in interpreting and determining the sufficiency of the allegations of the bill as against the demurrer filed. Our conclusion, therefore, is that the motion made by the appellee should be and it is hereby denied.
The bill was filed by the appellee as the widow of James G. Brantley, deceased, under the Declaratory Judgment Act, Code of 1940, Tit. 7, § 156 et seq., against The First Farmers & Merchants National Bank of Troy, Alabama, a corporation, as Executor of the last will and testament of said decedent, and the other respondents. The bill alleges that James G. Brantley left surviving him 'the complainant, his widow, and the following listed heirs and next of kin', without alleging their kinship but giving the name and address of each of said respondents. The bill prays that each of the respondents be made parties respondent to the bill of complaint; 'that by due process they and each of them be required to plead, answer or demur hereto, within the time and in the manner required by law and the rules of this Honorable Court, and that a guardian ad litem be appointed for Marcie Brantley, a minor under the age of 21 years and that such guardian ad litem be also made a party respondent to the bill of complaint and by due process be required to plead, answer or demur hereto within the time and in the manner required by law and the rules of this Honorable Court, etc.'
The bill seeks a decree declaring an alleged antenuptial agreement entered into between the parties on the 17th day of January, 1929, and that 'every provision thereof [be declared] invalid, null, void and of no effect.' Brackets supplied. The said agreement is set out in haec verba in the bill, the last paragraph of which provides:
The bill alleges that Brantley, the party of the first part, died in Pike County, Alabama, on the 4th of December, 1950, leaving surviving his widow, the party of the second part, to the above agreement; that his personal representative, as executor, filed in the Probate Court of Pike County an instrument in writing...
To continue reading
Request your trial
-
Butler v. Olshan, 6 Div. 113
...488, 7 So.2d 33; Sellers v. Valenzuela, 249 Ala. 627, 32 So.2d 517; and Belyeu v. Boman, 252 Ala. 371, 41 So.2d 290. In Brantley v. Brantley, 258 Ala. 367, 63 So.2d 29, this court refused to take notice of another proceeding in the trial court for the purpose of sustaining a bill against de......
-
Board of Trustees of Emp. Retirement System of City of Montgomery v. Talley, 3 Div. 456
...require such interested person to be made a party, and if not, the bill is subject to a demurrer assigning that ground. Brantley v. Brantley, 258 Ala. 367, 63 So.2d 29. The word 'shall,' in that portion of § 11 (our § 166, supra) of the Uniform Declaratory Judgments Act has been construed t......
-
Crickmer v. King
...v. Rosenfeld, 397 S.W.2d 906 (Tex.Civ.App. Dallas 1965) rev. other grounds 405 S.W.2d 301; Stanley v. Mueller, supra; Brantley v. Brantley, 258 Ala. 367, 63 So.2d 29 (1953); Edmondson v. Henderson, 246 N.C. 634, 99 S.E.2d 869 (1957); In Re: Bridge's Estate, 40 Wash.2d 133, 241 P.2d 439 (195......
-
Alexander City v. Continental Ins. Co.
...250 Ala. 36, 33 So.2d 3; Brantley v. Brantley, 251 Ala. 493, 38 So.2d 8; White v. Manassa, 252 Ala. 396, 41 So.2d 395; Brantley v. Brantley, 258 Ala. 367, 63 So.2d 29. That also involves the contention that there may be some other adequate remedy at law between the complainant and the Chapp......