Durham v. Mims, 5 Div. 700

• Decision Date: 20 August 1959
• Docket Number: 5 Div. 700
• Citation: 114 So.2d 245,269 Ala. 477
• Court: Alabama Supreme Court
• Parties: Berry DURHAM et al. v. Bill MIMS et al.

Page 245

114 So.2d 245

269 Ala. 477

Berry DURHAM et al. v. Bill MIMS et al.

5 Div. 700.

Supreme Court of Alabama.

Aug. 20, 1959.

A. B. Foshee, Clanton, for appellants.

Omar L. Reynolds and Reynolds & Reynolds, Clanton, for appellees.

SIMPSON, Justice.

This appeal is from an interlocutory decree overruling a demurrer to a bill in equity. The complainants are collateral heirs at law of one Bill Mims, deceased, one of them a brother and the others nephews and niece of decedent. The purpose of the bill is to set aside a decree of the probate court granting the application of the widow of the decedent to have the homestead of decedent set apart to her under Code 1940, Tit. 7, § 694, and to cancel a deed thereafter made by the widow to the respondents Durham, conveying the homestead property. The Durhams are made respondents to the bill along with some twenty other parties alleged to be descendants of deceased brothers and sisters of the decedent. These latter are alleged to be joint heirs of decedent and joint tenants with complainants. As an incident to the main purpose of the bill there is a prayer for sale of the property for division among the joint owners or tenants in common.

The bill is conceded to be a collateral attack upon the decree of the probate court, is so denominated in appellees' brief, and alleges that the decree is void on its face for that the application of the widow failed to set forth the names, condition and residence of the heirs of the decedent other than the minor children of the decedent, as required by § 694, supra.

The application of the widow is made an exhibit to the bill. It is not questioned that the application--with the single exception noted--strictly follows the statute. It alleges that the real or personal property owned by decedent at the time of his death does not exceed in amount and value the exemption allowed in favor of his widow and minor child or children or either; that no administration had been granted on his estate within sixty days after his death; that he left surviving him his widow, the applicant, and no children, no children having been born to him. No reference is made to heirs other than children.

Also exhibited is the order of the judge of probate appointing commissioners to make a full inventory and appraisement of the real or personal property, or both, of such decedent, as required by the statute. On the filing of report by the commissioners April 3, 1957, the judge of probate ordered it be recorded and lie over for exceptions and objections thereto until May 6, 1957; and that notice of such filing and of the day set for hearing and confirmation of the report 'be given to each of the heirs whose names are listed in the original petition filed in this cause'. The report of the commissioners found, among other things, that the property owned by decedent at the time of his death was of amount and value less than the exemption allowed, describing such property and fixing its area and value, and further, that the decedent had left surviving only his widow and no children, and that the property should be set apart to the widow. The decree, after reciting the findings made in the report of the commissioners and that a named person who was a sister of decedent was a person of unsound mind for whom the court had appointed a guardian ad litem and that such guardian ad litem had made an appearance in the proceeding, adjudged that, there having been no exceptions filed to the report of the commissioners, the said report be confirmed and that absolute title to the property described vest in the widow.

Appellees, complainants below, proceed upon the theory that the requirement in § 694, Tit. 7 of the Code that the application set forth the facts thereinabove mentioned 'as well as the names, condition, and residence, if known, of the heirs of the decedent other than the minor children of the decedent', is jurisdictional, and that failure to do so renders the decree of the probate court void on its face. It is not alleged that appellees did not have notice of the filing of the report of the commissioners, nor that they were not present at the hearing. From the orders and decree of the probate court it is evident that some notice to the heirs was given and that they filed no exceptions to the report of the commissioners. It seems to be appellees' position that even though such heirs had the notice comprehended by § 677, Tit 7 of the Code, and may have actually participated in the hearing, yet the decree is void on its face for failure of the application of the widow to set out their names, etc.

Reliance for this is placed upon the principle that the probate court, in setting apart exemptions to the widow and minor children, acts as a court of limited jurisdiction and that such jurisdiction attaches only when the application or petition contains the necessary jurisdictional allegations; that the application must show the facts prescribed by the statute which are regarded as jurisdictional, and in the absence of such showing the decree will be void on its face. Wright v. Fannin, 229 Ala. 278, 156 So. 849; Davis v. Reid, 264 Ala. 560, 88 So.2d 857; Cogburn v. Callier, 213 Ala. 46, 104 So. 330; Miller v. Thompson, 209 Ala. 469, 96 So. 481; Walton v. Walton, 256 Ala. 236, 54 So.2d 498; Simpson v. Simpson, 254 Ala. 648, 49 So.2d 314; Forbes v. Summers, 259 Ala. 271, 66 So.2d 762; Craig v. Root, 247 Ala. 479, 25 So.2d 147. This principle has been quite consistently stated and applied, and we have said that without the necessary jurisdictional averments in the petition the court is without authority to proceed and subsequent findings and recitals in the decree cannot supply the absence of averments essential to its right to proceed in the case. Carter v. Carter, 251 Ala. 598, 38 So.2d 557; Singo v. McGehee, 160 Ala. 245, 49 So. 290.

The real point in the case is whether or not the matter omitted from the petition is jurisdictional. It is not every fact or matter mentioned in the statute that is jurisdictional, necessary to be set out in the petition in order for jurisdiction to attach. It is significant that our cases dealing with homestead statutes generally speak of necessary jurisdictional facts or facts prescribed by statute which are regarded as jurisdictional. If jurisdictional, the omission may not be supplied by subsequent recitals in the record, and if not jurisdictional it might be supplied. Singo v. McGehee, supra; Keenum v. Dodson, 212 Ala. 146, 102 So. 230. This is not to say that any of the facts set out in the statute need not be proved. It should be borne in mind that a decree rendered in a proceeding such as this is subject to collateral attack only when void on its face, but still is not impervious to direct attack as, for example, a false averment in the petition working a fraud upon the court or other fatal infirmity in the proceeding. In the Singo case, supra, it was held that residence of decedent in the county where the petition was brought was not a jurisdictional fact, notwithstanding the statutory requirement that he be such resident.

In Davis v. Reid, supra, we had before us an appeal from the probate court setting apart homestead and vesting fee-simple title in the widow. The decree was attacked upon the ground that the allegations of the petition were insufficient to invoke the jurisdiction of the probate court for that it contained no allegation that the personal property owned by petitioner's deceased husband was less in value than the exemption allowed in favor of the widow, notwithstanding that element is mentioned in § 694, supra. After a careful review of prior decisions we reached and stated the conclusion that the petition, omitting this allegation, was sufficient, expressing the view that to enunciate a rule to the contrary might disturb titles long since regarded as settled by the parties, the bench and the bar. As pointed out in that case, the exact question there involved had not before been presented...