City of Bessemer v. Clowdus

• Decision Date: 26 February 1953
• Docket Number: 6 Div. 394
• Citation: 63 So.2d 355,258 Ala. 378
• Parties: CITY OF BESSEMER v. CLOWDUS.
• Court: Alabama Supreme Court

Page 355

63 So.2d 355

258 Ala. 378

CITY OF BESSEMER v. CLOWDUS.

6 Div. 394.

Supreme Court of Alabama.

Feb. 26, 1953.

Ling & Bains, Bessemer, for appellant.

D. G. Ewing, Birmingham, and Lipscomb & Brobston, Bessemer, for appellee.

LIVINGSTON, Chief Justice.

H. W. Martin departed this life in Bessemer, Jefferson County, Alabama, on or about the 10th day of December, 1949, leaving no last will and testament. On the 9th day of February, 1950, Margie Martin Clowdus filed her petition for letters of administration on the estate of H. W. Martin, deceased, in the Probate Court of Jefferson County, Alabama, Bessemer Division; and on that day, the Probate Court of Jefferson County, Alabama, Bessemer Division, entered a decree granting letters of administration to the said Margie Martin Clowdus on the estate of H. W. Martin, deceased. Thereafter, Margie Martin Clowdus, as the administratrix of the estate of H. W. Martin, deceased, entered suit in the Circuit Court of Jefferson County, Alabama, Bessemer Division, against the City of Bessemer, a municipal corporation, claiming the sum of $50,000 as damages for the wrongful death of the said H. W. Martin.

On November 5, 1951, the City of Bessemer filed in the Probate Court of Jefferson County, Alabama, Bessemer Division, the petition to remove the administratrix and revoke letters of administration in the matter of the estate of H. W. Martin, deceased. The petition averred, among other things, that the said H. W. Martin, deceased, at the time of his death on December 10, 1949, was in truth and in fact not a resident of Bessemer, Jefferson County, Alabama, but that in truth and in fact, the said H. W. Martin was at the time of his death, on December 10, 1949, a resident citizen of Gadsden, Etowah County, Alabama, and that, therefore, the Probate Court of Jefferson County, Alabama, was without jurisdiction to issue or grant letters of administration on the estate of H. W. Martin, deceased. The petition further alleged that the City of Bessemer is defendant in a suit in which $50,000 has been claimed by the said Margie Martin Clowdus in her capacity as administratrix of the estate of H. W. Martin, deceased, for and on account of alleged wrongful acts of the City of Bessemer, and that the issuance of said letters of administration is a material matter to the City of Bessemer.

On November 26, 1951, Margie Martin Clowdus individually, and in her capacity as administratrix, interposed a motion to strike the petition to remove the administratrix, assigning many grounds therefor.

On January 3, 1952, the court made and entered an order granting the motion to strike the petition of the City of Bessemer to remove the administratrix and revoke the letters of administration. From this decree, the City of Bessemer appealed.

Section 80, Title 61, of the Code of 1940, provides that:

'Courts of probate, within their respective counties, have authority to grant letters of administration on the estates of persons dying intestate, as follows:

'1. Where the intestate, at the time of his death, was an inhabitant of the county',

and in other cases about which this appeal is not concerned.

Our cases are clear to the effect that where the fact of inhabitancy does not exist, the grant of administration is not void, but may be avoided by a direct proceedings for that purpose. Coltart v. Allen, 40 Ala. 155, 88 Am.Dec. 757; Barclift v. Treece, 77 Ala. 528, 531; Holmes v. Holmes, 212 Ala. 597, 103 So. 884; Clark v. Glenn, 249 Ala. 342, 31 So.2d 507.

The petition of Margie Martin Clowdus for letters alleged facts which justified her appointment under Section 80(1), Title 61, Code 1940, in Jefferson County. The Probate Judge on said petition found and declared that those facts were substantially true and made the appointment and issued letters.

Although those facts may not have been true, that court had the power to make the finding and declaration, and, therefore, the appointment was not void, but was voidable and subject to revocation on direct attack. The attack in this instance is direct. Bell v. Fulgham, 202 Ala. 217, 80 So. 39.

But the further question remains. Did the City of Bessemer, a municipal corporation, an alleged debtor of the estate of H. W. Martin, deceased, have the right, power or authority to sustain the attack?

It seems that the question posed above is one of first impression in this state, and that the decisions from other jurisdictions which have decided the exact question are not harmonious. See 123 A.L.R., p. 1225.

Our cases are clear to the effect that if the appointment of an administrator is void for want of jurisdiction of the subject matter as distinguishable from the venue in which the appointment was made, such void appointment may be revoked by anyone interested in the estate of the decedent or by the court ex mero motu or upon the suggestion of some person amicus curiae. Authorities, supra. See, also, Moring v. Lisenby, 241 Ala. 626, 4 So.2d 4.

In the case of Coltart v. Allen, supra, it was held that:

'The question of the county of the intestate's inhabitancy, depends upon oral and conflicting testimony. Without regard to the merits of that question, the judgment of the probate court must be affirmed. This conclusion is attained as the result of the following propositions: 1st, that the appointment in Jackson county was not void, but voidable, upon the concession that the evidence proves the inhabitancy to have been in Madison; 2d, that the administration in Jackson being merely voidable, the later administration, granted pending the prior, is void; and,...