Braswell v. Money

• Decision Date: 15 April 1977
• Citation: 344 So.2d 767
• Parties: In re Etta Sorrell BRASWELL et al. v. J. B. MONEY, etc., et al. Ex parte Etta Sorrell Braswell et al. SC 2094.
• Court: Alabama Supreme Court

Page 767

344 So.2d 767

In re Etta Sorrell BRASWELL et al. v. J. B. MONEY, etc., et al.

Ex parte Etta Sorrell Braswell et al.

SC 2094.

Supreme Court of Alabama.

April 15, 1977.

C. Neal Pope, Phenix City, John B. Crawley, for Crawley & Ford, Troy, William H. Johnston, for Johnston & Johnston, Huntsville, Truman Hobbs, for Hobbs, Copeland, Franco & Screws, Montgomery, for petitioners.

Oliver W. Brantley, for Brantley & Calhoun, Troy, Walter R. Byars, for Steiner, Crum & Baker, Montgomery, opposed.

EMBRY, Justice.

In this case, on petition for the Writ of Mandamus, we ordered an answer filed in order to review the refusal of the trial court to grant a motion for change of venue in the contest of the will of Anise J. Sorrell. We find the evidence in support of the motion insufficient to show an abuse of discretion by the trial court in denying a change of venue and therefore deny the Writ of Mandamus.

Petitioners, Etta Sorrell Braswell, Lois Sorrell Phillips, and Joseph W. Burt, filed an action to contest the last will and testament of Anise J. Sorrell, and a codicil to that will. Proponents of the will are J. B. Money, Annette Colley, Louise Scott, Larry Johnston, Anise Johnston, Helen Johnston, Troy State University, Lurleen B. Wallace Memorial Cancer Hospital Fund, Inc., and Union Bank and Trust Company of Montgomery, Inc.

It is alleged that Anise and her husband, W. J. Sorrell, while living, entered into an agreement whereby W. J. promised to leave to Anise one-half of his entire estate, at his death, if Anise would promise to leave that portion of the estate to petitioners at her death. Anise executed a will in keeping with the agreement, but later executed a codicil wherein the contested portion of the estate was left to Troy State University, The Lurleen Wallace Memorial Cancer Hospital Fund, and members of the J. O. Colley, Jr., family. The size of the estate is estimated at $4,700,000.

The action was set for trial in the Circuit Court of Pike County. Before trial date, petitioners filed their motion for change of venue which was denied after a hearing. This Court granted a stay of the proceedings pending final determination as to the writ of mandamus to review the ruling on the motion for change of venue.

The motion for change of venue was pursuant to the authority of Code of Ala., Tit. 7, § 65, on the basis that contestants could not have a fair and impartial trial in Pike County. It was based on two grounds: (1) local prejudice, and (2) influence over the public mind by the proponents of the will.

At the hearing on the motion, petitioners presented testimony and evidence which they contend was sufficient to support the conclusion that these two factors existed in this action. This being the case, they say, the trial court abused its discretion when it denied the motion for change of venue. We disagree.

Title 7, § 65, Code of Ala. (1940), states:

'Either party to a civil suit may, at any time before final trial, move the court to change the venue, making affidavit that for causes set forth, he cannot have a fair and impartial trial in the county where the suit is pending. * * *'

As a standard against which this statute might be judged, petitioners quote from 77 Am.Jur.2d, Venue, § 59 (1975);

'* * * it is sufficient if there are existent influential factors from which probable partiality in substantial degree, upon the part of a substantial number of persons, and such as to presage appreciable and extensive influence, may be reasonably inferred. * * *'

To satisfy the requirement of Tit. 7, § 65, Code, that it be shown that one cannot have a fair and impartial trial, and to satisfy the above standard, petitioners presented the following evidence to support their grounds for change of venue:

A. Local prejudice

Troy State University, which stands to benefit considerably, should petitioners lose the will contest, is located in the City of Troy, Pike County, site of the trial. It is alleged that Troy State exercises pervasive influence over the public mind, and, due to this, the public's interest in the contest is and will be adverse to that of petitioner's interest. To support this proposition, the following evidence is offered: Troy State University is the area's leading industry and greatest economic force. It is the largest employer in Pike County, employing approximately 300 persons. There are approximately 900 Troy State alumni in Pike County, including the judge in whose court this action is to be tried. Each year the Troy Chamber of Commerce sponsors a TSU Appreciation Day, in recognition of the contributions made by, and the favorable and extensive influence of TSU in the community. Appreciation Day involves the participation of many members of the community.

A 'number' of county residents contribute money to TSU.

Testimony of the Clerk of the Circuit Court of Pike County was presented. He produced the venire list for the term of court for which the will contest was originally docketed. It contained 119 names, including those not summoned for various reasons and those which might be excused. Forty-five persons listed reside in Troy, and ten persons on the list are employed by Troy State University. Testimony of various city officials and administrative officials of TSU was taken. The record shows six of these witnesses stated they saw no reason why contestants could not obtain a fair and impartial trial. Only two witnesses testified to the contrary: John B. Crawley, an attorney for the contestants, and, by oral deposition J. W. Burt one of the contestants.

This evidence must be analyzed both in light of meager Alabama case law and generally accepted standards on the subject of change of venue in civil actions.

The only Alabama case concerning local prejudice of the character asserted by petitioners, based on the above evidence, is Ex parte Morrow, 259 Ala. 250, 66 So.2d 130 (1953). This case involved a will contest in which a change of venue was granted after two mistrials occurred, and is so distinguishable on its facts as to be inapplicable in the instant case.

We recognize that local prejudice which tends to prevent a fair and impartial trial is ground for change of venue. In 92 C.J.S. Venue § 143, p. 853, it is stated:

'* * * Generally speaking, the prejudice must exist throughout the county, and not in the particular locality, but if prejudice in a particular locality exists and the number of jurors from that locality is so proportionately large that an impartial jury cannot be selected, a change of venue may be granted. That the people of the community are generally interested in the question involved is not sufficient, but it has been held that venue may be changed if the residents of the community are interested in the event, to such an extent as to prevent a fair trial. * * *'

The question then is, whether petitioners have spread on the record facts and circumstances of such character as to create a reasonable belief that a fair and impartial trial cannot be obtained in Pike County. We think not.

First, there is not sufficient evidence to prove local prejudice. To say that Troy State University has an impact on the City of Troy and its citizens is to elucidate the obvious. However, to conclude from this that TSU exercises pervasive influence over the public mind, of such a nature to create prejudice adverse to petitioners' interest, is error. There is no evidence here that the trial of this case has created widespread interest and comment in the community, nor that opinions have been formed concerning the case. Indeed, as we have noted, petitioners produced six witnesses, four of whom are employed by TSU, who testified to the reasonable belief that a fair and impartial trial could be had. The only testimony to the contrary was from a contestant-petitioner and an attorney for petitioners.

Second, petitioners' evidence regarding the potential number of 'prejudiced' jurors falls short of its intended goal. The venire list produced was for the entire term of court for which this case was docketed, and consisted of 119 names, not all of whom will appear for duty. We cannot guess, or surmise, how many of the 45 residents of...