Chamblee v. Cole
| Citation | 30 So. 630,128 Ala. 649 |
| Parties | CHAMBLEE ET AL. v. COLE. [1] |
| Decision Date | 16 January 1901 |
| Court | Supreme Court of Alabama |
Appeal from probate court, Jefferson county; J. P. Stiles, Judge.
Petition by Mattie J. Cole against Susan A. Chamblee and others to vacate decree. Decree for complainant, and defendants appeal. Affirmed.
The petition was filed by appellee, who alleges she is an heir at law of the decedent. It was alleged, and the record in the probate court disclosed, that the petition upon which the decree sought to be vacated was based contained only the following allegation as to the real estate owned by the decedent at the time of his death, to wit: "He owned without any incumbrance a plantation which does not exceed 160 acres, or two thousand dollars in value." Upon the hearing of this petition a decree was rendered vacating and annulling the former decree by which the homestead exemption was set apart.
John W Chamblee, for appellants.
Lane & White, for appellee.
It is well settled that where a decree void for want of jurisdiction has been rendered the court rendering it possesses the inherent power, and should, on motion, vacate such decree. It is a nullity, and the court may at any subsequent term vacate it. 3 Brick. Dig. p. 584, § 124. If not void, the court has no power to alter, vary, or annul it after the expiration of the term at which it was rendered except for clerical error or omission, on evidence shown by the record. Baker v. Barclift, 76 Ala. 414; Buchanan v. Thomason, 70 Ala. 401. It is equally as well settled that, where the court whose jurisdiction is questioned is one of limited jurisdiction, it must appear from the face of the proceedings that it has acted within the scope of its jurisdiction; in other words, no presumption is indulged, from the mere exercise of jurisdiction, of the existence of jurisdictional facts. They will not be inferred but must affirmatively appear from the record. Pettus v McClannahan, 52 Ala. 55; Joiner v. Winston, 68 Ala. 129. To quote the language to be found in Robertson v. Bradford, 70 Ala. 387, on this point: "Nothing is presumed to be within the jurisdiction of a court of limited jurisdiction except that which is so expressly alleged and affirmatively appears from the record." The jurisdiction of the probate court to set apart to a widow and minor children exemptions before administration (section 2097, Code; section 2562, Code 1886; and Acts 1887, ...
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Williams v. Overcast
...... showing the decree will be void on its face. Miller v. Thompson, 209 Ala. 469, 96 So. 481, 483; Chamblee v. Cole, 128 Ala. 649, 30 So. 630.". . . The two. cases last cited-both by Mr. Justice Sayre-were: Miller. v. Thompson, 209 Ala. ......
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Davis v. Reid
...not exceed in amount and value the exemptions allowed in favor of his widow and minor child or children, or either.' In Chamblee v. Cole, 128 Ala. 649, 30 So. 630, it was held that an averment that decedent at his death 'owned without any incumbrance a plantation which does not exceed 160 a......
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Alford v. Claborne
......This. averment, which seems to have been industriously avoided, was. jurisdictional.". . . And the. decision in Chamblee v. Cole, 128 Ala. 649, 30 So. 630, is rested upon this authority; the holding being to the. effect that, as the petition was lacking in this. ......
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Ex parte Wilson Lumber Co., Inc.
...said decree. Johnson v. Johnson's Adm'r, supra (So., 40 Ala. 247); Buchanan v. Thomason, supra (So., 70 Ala. 401); Chamblee et al. v. Cole, supra (128 Ala. 649, 30 So. 630); Sweeney et al. v. Tritsch, supra (151 Ala. 242, 44 So. 184); State ex rel. St. Peter's M. Baptist Church v. Smith, Ju......