Crossland v. First Nat. Bank

• Decision Date: 21 January 1937
• Docket Number: 3 Div. 176
• Citation: 233 Ala. 432,172 So. 255
• Parties: CROSSLAND v. FIRST NAT. BANK OF MONTGOMERY et al.
• Court: Alabama Supreme Court

172 So. 255

233 Ala. 432

CROSSLAND v. FIRST NAT. BANK OF MONTGOMERY et al.

3 Div. 176

Supreme Court of Alabama

January 21, 1937

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Bill in equity by Tunstall Crossland, as executor of the will of Pearl Crossland, deceased, against the First National Bank of Montgomery, and others. From a decree sustaining a demurrer to the bill, complainant appeals.

Reversed rendered and remanded.

Hill Hill, Whiting & Rives, of Montgomery, for appellant.

Steiner Crum & Weil, of Montgomery, for appellees.

FOSTER Justice.

This is a bill filed by an executor, and seeks the removal of the estate into the circuit court, in equity, by virtue of section 6478, Code, and other relief. There was a demurrer to the bill as a whole, and if it is sufficient in any aspect, the demurrer should have been overruled. First National Bank v. Forman, 230 Ala. 185, 160 So. 109.

It was sustained, and complainant appeals. Appellant insists that it is at least sufficient under the Code section cited above.

The bill alleges that the administration of said estate is still pending in the probate court and that there has been no final settlement thereof, and that in the opinion of orator the estate can be better administered by this court than it can by the said probate court. The substance of the language of the statute was used, and it has been held that when there is nothing to discredit the effect of such averments, they will be construed to mean that the probate court has not entered upon an exercise of its jurisdiction in respect to a final settlement. For when that has been done, though final settlement has not been completed, equity will not remove the administration unless it is necessary to render some relief not available in the probate court. Ex parte McLendon, 212 Ala. 403, 102 So. 696; Brizendine v. American Trust & Savings Bank, 211 Ala. 694, 101 So. 618; Mobbs v. Scott (Ala.Sup.) 169 So. 698.

But it is contended that although the bill may be prima facie sufficient in that respect, this court will, as did the circuit court, take notice of the status of the estate as shown by the record in this court on another appeal. Crossland v. First National Bank, 226 Ala. 679, 148 So. 418. The published report of that case shows that it was an appeal from the probate court administering this estate, in which that court held that at the time of the death of decedent the value of her realty exceeded $3,000, and therefore that the estate was not insolvent and dismissed the petition to have it so decreed. On appeal, that decree was affirmed because there was no bill of exceptions showing the evidence on which the decree was founded. The judgment of affirmance was dated May 25, 1933. The instant bill was filed December 22, 1933.

It is contended that we should take notice that the record on that appeal shows that the executor had been cited by the probate court to file his accounts and vouchers for final settlement on February 18, 1931, whereupon the executor filed the petition to declare it insolvent, which was considered on such appeal, and which was finally dismissed May 25, leaving the citation and order of the probate court outstanding and effective, amounting to an assumption of jurisdiction by that court in respect to a final settlement, so as to withdraw it from section 6478, Code.

Of course that record would not show what, if any, proceeding has occurred, since it was made up, or whether the order has been revoked or discontinued. We have not examined the record on that appeal to see what is shown to be its status. We will sometimes do so "to ascertain the issues of law and fact there involved, and the result, and the influence of such adjudication on the questions presented in the appeal under consideration." Catts v. Phillips, 217 Ala 488, 117 So. 34, 35. Also "when a party refers to such other proceeding or judgment in his pleadings for any purpose, the court on demurrer by the other party may and should take judicial notice of the entire proceeding insofar as it is relevant to the question of law presented," when they are both in the same court. Cogburn v. Callier, 213 Ala. 38, 104 So. 328; Alabama City, G. & A.R. Co. v. Bates, 155 Ala. 347, 46 So. 776. These are exceptions to the general rule, 23 Corpus Juris 113, and this bill...