Ex parte Colvert

Decision Date12 May 1914
Docket Number800
Citation188 Ala. 650,65 So. 964
PartiesEx parte COLVERT.
CourtAlabama Supreme Court

Rehearing Denied June 24, 1914

Petition for mandamus by Mary O'Rourke Colvert to compel the Chancery Court of Jefferson County to vacate an order setting aside the verdict of a jury. Denied, and petition dismissed.

Gaston & Pettus, of Birmingham, for appellant.

John T Glover, of Birmingham, for appellee.

DE GRAFFENRIED, J.

This is an original application to this court for a writ of mandamus addressed to the chancery court of Jefferson county ordering said court to vacate an order of said court setting aside the verdict of a jury.

The facts, in short, are the following: An instrument, purporting to be the last will and testament of W.R. O'Rourke was duly probated in the probate court of Jefferson county, Ala. Within a year after that period a bill of complaint was under the provisions of section 6207 of the Code of 1907 filed in the chancery court of Jefferson county to contest the validity of the will. When the bill was filed a trial of the issue devisavit vel non by a jury was regularly demanded. The chancery court made an order that this issue should be tried by a jury in a court of law, which was done. The jury which tried the issue in the law court returned a verdict invalidating the will. During the progress of the trial in the law court the respondents to the bill reserved a bill of exceptions wherein they set forth the particulars in which they felt themselves injured by the rulings had upon that trial. This bill of exceptions was filed in the chancery court, and was made the basis, by the respondents, of a motion filed in the chancery court to award them a new trial. The chancellor granted the motion for a new trial, and this proceeding is had for the purpose of requiring the chancellor to vacate the order granting the new trial and to render a decree following the verdict invalidating the will. The sole question, then, is: Did the chancellor have the power to set aside the verdict and order another trial of the issue devisavit vel non by a jury? This question has never been determined by this court, and is not free from difficulty.

1. It is, of course, a familiar proposition that on doubtful or controverted issues of fact the chancellor, without regard to any of our statutes, may, in his discretion, call for the verdict of a jury. In such case he may himself impanel the jury or he may certify the questions about which there is doubt or conflict to a law court to be tried by a jury. Adams v. Munter & Bro., 74 Ala. 338.

In all such cases, undoubtedly, the proper practice is for the aggrieved party to have the particulars wherein he supposes himself injured on the trial in the law court certified by the presiding judge of such law court to the chancery court and to make "that certificate, or the certified exceptions, the basis of a motion for relief before the chancellor." Adams v. Munter & Bro., supra.

In such a case the chancellor certainly has the power to set aside the verdict of the jury and to order a new trial of the issues. Adams v. Munter & Bro., supra.

If either party is dissatisfied with the verdict, an application should be made for a new trial, "not to the court in which the issue is tried, but to the court of chancery in which the cause is pending." Alexander v Alexander, 5 Ala. 517.

2. When the validity of a will is contested in chancery under the provisions of section 6207 of the Code of 1907, then, under the construction which this court has placed upon section 6209 of said Code, a trial by jury, upon seasonable demand of either of the parties for a new trial of the issue devisavit vel non by a jury, becomes a matter of right.

Mathews v. Forniss, 91 Ala. 157, 8 So. 661; McCutchen v. Loggins, 109 Ala. 457, 19 So. 810.

In such a case the chancellor, as in all other cases in which he submits an issue of fact to the determination of a jury, may impanel a jury and have the issue determined in his own court, or he may direct the issue to be tried by a jury in a court of law. Code, 1907, § 6209.

It would seem, therefore, that the same rules of procedure must govern every case in which the trial by jury is had of doubtful or controverted issues of fact arising in a suit in chancery regardless of the question as to whether the chancellor has a discretion as to ordering a jury trial or whether he is without discretion in so ordering it. Our statutes on the subject now under consideration were adopted in the light of the above rules of chancery governing the trial by jury of disputed and doubtful issues of fact, and in the light of those rules those statutes must be construed. In so far as the law court in which, under the direction of the chancery court, the issue devisavit vel non is tried is concerned, we find nothing in any of our statutes which confers upon it any power whatever as to the granting of a new trial, nor do we find that any of our statutes have conferred upon a law court trying such an issue any more authority or power over a verdict rendered upon such an issue than it possesses over any other verdict rendered by one of its juries upon any other question of disputed fact certified to it for trial by a court of chancery. "If either party is dissatisfied with the verdict an application [[for a new trial] should be made, not to the court in which the issue is tried, but to the court of chancery in which the cause is pending," was a general rule governing all jury trials of issues of fact in chancery cases long before any of our statutes on the subject now under consideration were enacted and we see no way of escaping the proposition that, in the instant...

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25 cases
  • Lewis v. Martin
    • United States
    • Alabama Supreme Court
    • October 18, 1923
    ... ... effectively abandoned, dismissed, or decided. State ex ... rel. Attorney General v. Livingston, Judge, 170 Ala ... 147, 54 So. 109; Ex parte City Council of Montgomery, 114 ... Ala. 115, 14 So. 365; Ex parte Farrell, 196 Ala. 434, 71 So ... 462, L. R. A. 1916F, 1257; Sharp v. Edwards, ... 391, 404, 405, 74 So. 441; ... Adams v. Munter & Brother, 74 Ala. 338; Mathews ... v. Forniss, 91 Ala. 157, 8 So. 661; Ex parte Colvert, ... 188 Ala. 650, 65 So. 964; Stephens v. Richardson, ... 189 Ala. 360, 66 So. 497; West v. Arrington, 200 ... Ala. 420, 76 So. 352. The ... ...
  • Williams v. Knight, 8 Div. 731
    • United States
    • Alabama Supreme Court
    • June 4, 1936
    ... ... purposes an action at law. This seems to the writer to be at ... variance with the decisions in Ex parte Colvert, 188 Ala ... 650, 65 So. 964, and Kilgore v. T.C., I & R. Co., ... 191 Ala. 189, 67 So. 1002; but the court here and now prefers ... to ... ...
  • Karter v. East
    • United States
    • Alabama Supreme Court
    • December 5, 1929
    ... ... cannot be presented on appeal to this court. This rule seems ... fully established. Ex parte Colvert, 188 Ala. 653, 65 So ... 964; Adams v. Munter & Bro., 74 Ala. 338; A., T ... & N. Ry. Co. v. Aliceville Lumber Co., 199 Ala. 408, 74 ... ...
  • Alabama, T. & N. Ry. Co. v. Aliceville Lumber Co.
    • United States
    • Alabama Supreme Court
    • December 21, 1916
    ...wishing the aid of the verdict of the jury to satisfy the mind and conscience of the chancellor (section 3201, Code 1907; Ex parte Colvert, 188 Ala. 650, 65 So. 964). The seem to be distinguishable in several particulars. In the first, it is a matter of right, and is ordered before evidence......
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