Clary v. Cassels
| Decision Date | 20 November 1952 |
| Docket Number | 6 Div. 89 |
| Citation | 61 So.2d 692,258 Ala. 183 |
| Parties | CLARY v. CASSELS. |
| Court | Alabama Supreme Court |
Chas. W. Greer and McGowen & McGowen, all of Birmingham, for appellant.
Kingman C. Shelburne, H. L. Anderton and Chas. T. Emmett, Jr., all of Birmingham, for appellee.
This proceeding involves a disputed claim against a solvent estate under the provisions of Code 1940, Tit. 61, § 216, Act No. 324, approved July 1, 1943, Gen.Acts 1943, p. 308.
The probate court allowed the claim, and an effort was made on behalf of the executor to take an appeal to the circuit court. The claimant filed in the circuit court his 'objections to trial and motion for discontinuance,' which the court overruled. The circuit court, after a hearing without a jury, entered judgment denying the claim. From that judgment the claimant has taken this appeal, insisting that the court erred (a) in overruling 'his objections to trial and motion for discontinuance,' and (b) in rendering judgment in favor of the executor. Our conclusion is that the case is due to be reversed and rendered for the reason that the appeal from the probate court to the circuit court was not perfected as required by statute.
The Facts.
The appellant filed his claim in the Probate Court of Jefferson County against the estate of Maude V. Clary, deceased. The administration of this estate was then pending in said court. The basis of the claim is a promissory note for $4,250.00, dated May 15, 1947, executed by the deceased, Maude V. Clary, and made payable on demand to the order of appellant. The judgment of the probate court allowing the claim was rendered on November 22, 1949. On December 12, 1949, the executor filed the following instrument in the probate court:
'Security for costs in probate court
Final record 87, page 85.
Deceased, Defendant.}
Security for costs in Probate Court.
We hereby acknowledge ourselves security for all costs in the Circuit Court in the above case, returnable to the present term thereof. And for the payment of the above bond, we hereby waive our right of exemption to person (sic) property under the Constitution and Laws of the State of Alabama.
J. Vernon Cassels (L.S.)
G. H. Brinkman (L.S.)
T. C. Day (L.S.)'
On the bottom of this instrument is the following notation:
'Taken and approved this the 12 day of December 1949.
On the same day, December 12, 1949, the probate court made the following order:
'On this day came J. Vernon Cassels with G. W. Brinkman and T. C. Day as sureties and filed bond to secure all costs of appeal to the Circuit Court of Jefferson County, Alabama, in the matter of petition to determine the validity of the claim of J. Roy Clary filed against the estate of Maude V. Clary, deceased.
'And it appearing to the Court that said sureties are good and solvent, it is, therefore, ordered that said bond be taken, approved and recorded.
'It is further ordered that notice of the filing of said appeal be given McGowen & McGowen, as attorneys for J. Roy Clary, in the manner and form as is by the Statute in such cases made and provided.'
The record of the proceedings had in the probate court was filed in the Circuit Court of Jefferson County on January 24, 1950.
There appears to be a conflict in the record as to the time of filing by the claimant of his initial appearance in the circuit court. The record before us shows, on the one hand, that, on May 2, 1950, he filed in the circuit court an instrument entitled 'objection to trial by jury'. The notation of such filing, which appears in the record immediately following the instrument, is as follows: 'Filed in open court May 2nd, 1950'. The claimant insists that it was filed on May 3, 1950, after he had filed, on the same day, his 'objections to trial and motion for discontinuance'; that the judgment entry and other record proceedings show this to be the true situation. The notation of filing said objections and motion, which appears in the record immediately following said instrument, is as follows: 'Filed in open court May 3rd, 1950'. The judgment entry recites as follows:
'It is ordered and adjudged by the court that said objection be and the same is hereby sustained and said demand for jury is stricken and the objector or contestant excepts. * * *'
The transcript of the proceedings, duly certified by the court reporter as required by Act No. 461, approved July 12, 1943, abolishing bills of exceptions in certain courts, Gen.Acts 1943, p. 423; Code 1940, Tit. 7, § 827(1), Pocket Part, shows that the 'cause came on to be heard * * * on the 3rd day of May, 1950.' The transcript also includes the following statement made by the court on May 4, 1950:
'The Court: This cause was assigned to Division No. 4 on May 3, 1950 at approximately 3 o'clock P.M. and the Court indicated at that time that it desired to select a jury in as much as a number of the jurors would be excused who were not needed since there were no other civil cases to be tried.
'In attempting to get to the case at issue, and before the selection of the jury, the Court entered on its bench notes, under date of May 3, 1950, 'Claimant refiles claim originally filed in Probate Court'. Before any formal answer was filed by the objector, counsel for the claimant indicated he desired to present, by motion, that the appeal was not properly presented to the Circuit Court. The Court then interlined the words on the bench notes as follows: 'Claimant refiled claim originally filed in Probate Court,' and noted the filing of the motion to discontinue or dismiss the appeal.
'Counsel for the claimant also indicated that he desired to file an objection to trial by jury and the Court entered this upon the bench notes, stating to counsel that the paper could be written and filed at a later date. The Court then proceeded to discuss and consider the merits of the two questions; that is, the question of the appeal being perfected and the merits of the objection to the jury trial.
'After a brief discussion the Court indicated that adverse rulings would be made to both contentions of the claimant and thereupon entered upon the bench notes, ruling to this effect: 'Exceptions taken by the claimant in each case.''
There is nothing in the record to indicate that there was, in this case, any hearing of any kind in the circuit court prior to May 3, 1950.
The grounds in support of claimant's 'objections to trial and motion for discontinuance,' in effect, are (1) that no appeal was ever taken by the executor of the estate; that the only record indication of an appeal being taken was the signing by J. Vernon Cassels, in his individual capacity, of the 'security for costs,' set out above; and (2) that the said 'security for costs' was defective, in that it was security only 'for all costs in the circuit court,' and not 'security for the costs of such appeal,' as required by Code 1940, Tit. 7, § 782; that the requirement that security be given 'for the costs of such appeal' embraces security for all costs of the appeal and not just the costs in the circuit court; and that the giving of such security for costs goes to the jurisdiction of the circuit court.
In answer to this, the executor contends that the claimant submitted to the jurisdiction of the circuit court by filing therein, on May 2, 1949, his 'objection to trial by jury'; that the filing of this instrument constituted a waiver of any alleged defect in taking the appeal.
Thus, there is presented at the threshold the question as to whether the circuit court acquired jurisdiction over the disputed claim.
Conclusion.
We would prefer to decide this case on its merits, and not to have it determined by a ruling on a matter of procedure; but when a procedural question, determinative of a case, is properly presented, as here, we have no choice but to rest our decision on it. Our conclusion is that claimant's 'objections to trial and motion for discontinuance' should have been sustained because of the failure to give security for costs of the appeal as required by Code 1940, Tit. 7, § 782; and for that reason the case is due to be reversed and rendered. This operates to prevent its consideration on the merits.
We will give the reasons for our conclusion.
In approaching the solution, we should keep in mind that the question involves an appeal from the probate court to the circuit court, under a special statutory provision, dealing with the specific subject of this proceeding. Code 1940, Tit. 61, § 216, as amended, supra; State v. Elliott, 246 Ala. 439, 21 So.2d 310. The right of the Supreme Court, under § 140 of the Constitution, to exercise 'a general superintendence and control of inferior jurisdictions', is not involved. Nor do §§ 805 and 806, Tit. 7, Code 1940, which provide for amending defects in the taking of appeals to the Supreme Court and Court of Appeals, have application in this case.
Before getting to a consideration of claimant's 'objections to trial and motion for discontinuance,' we must first dispose of the executor's contention that claimant waived whatever defect there might have been in taking the appeal. Our view is that the record does not show any action by the claimant which might...
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