Epperson v. Rice

• Decision Date: 12 April 1894
• Citation: 102 Ala. 668,15 So. 434
• Parties: EPPERSON v. RICE, JUDGE.
• Court: Alabama Supreme Court

15 So. 434

102 Ala. 668

EPPERSON v. RICE, JUDGE.

Supreme Court of Alabama

April 12, 1894

Appeal from city court of Decatur; W. H. Simpson, Judge.

Application by Joseph D. Epperson for writ of prohibition addressed to Green P. Rice, special judge. From a judgment refusing the application, petitioner appeals. Affirmed.

Joseph D. Epperson filed a petition, addressed to the city court of Decatur, praying for a writ of prohibition, or other appropriate process, addressed to Green P. Rice, presiding as special judge of probate in the matter of a contested election for the office of treasurer of Morgan county, and commanding the said Rice to refrain from further assuming jurisdiction of said contest, restraining him from taking any steps in the said case, and from making any order or rendering judgment therein. The judge of the city court refused the prayer of the petition, and dismissed the same. Petitioner appeals. Affirmed.

Wert &amp Speake and E. W. Godbey, for appellant.

J. B Moore and Rouehoc & Nathan, for appellee.

HEAD J.

There seems to us no merit in this appeal. It is not questioned that the probate judge was incompetent to try the proposed contest by reason of relationship to one of the parties, and the only question is whether Green P. Rice was lawfully appointed as special judge to try it. Section 802 of the Code provides, in such cases, that the judge of probate must certify his incompetency to the register in chancery of the county, or, if the register is incompetent, to the judge of the circuit or chancellor of the division, and such register judge, or chancellor must, upon such certificate, appoint a disinterested person, practicing in the county, learned in the law, to act as special judge of probate; and such special judge, in relation to such matter or proceeding, shall have the jurisdiction and authority, and discharge the duties, of judge of probate; and the orders and decrees made or rendered by him shall be entered on the records of the court, and shall have the force and effect, and shall be subject to revision on appeal, or by other revisory remedy, or orders and decrees of the court of probate, or of the judge thereof. It will be observed the provision applies as well to special proceedings before the probate judge, as such, as before the court of probate. In the present case it was at first supposed that the register was also incompetent by reason of relationship, and the...