Ex parte Morrow

• Decision Date: 14 May 1953
• Docket Number: 6 Div. 552
• Citation: 259 Ala. 250,66 So.2d 130
• Parties: Ex parte MORROW.
• Court: Alabama Supreme Court

Page 130

66 So.2d 130

259 Ala. 250

Ex parte MORROW.

6 Div. 552.

Supreme Court of Alabama.

May 14, 1953.

Rehearing Denied June 30, 1953.

John A. Altman, Carrollton, and W. A. Davis, Aliceville, for petitioner.

Partlow & Roberts, James J. Mayfield and Jas. W. Harrison, Tuscaloosa, for respondent.

GOODWYN, Justice.

This is an original petition for mandamus seeking to have set aside and vacated an order changing the venue in a will contest proceeding from Pickens County to Fayette County.

The status of the proceedings, insofar as here pertinent, is as follows: J. B. Morrow, deceased, who was a resident of Pickens County at the time of his death, was the owner of certain real property situated in Pickens County. An instrument purporting to be his last will and testament was offered for probate in the Probate Court of Pickens County by Dorothy M. Dillsworth, named therein as sole devisee and legatee. This purported will was contested by R. E. Morrow and, upon his demand, the proceedings were transferred to the Circuit Court of Pickens County. It appears that Dorothy M. Dillsworth is a resident of Walker County, Alabama, and is not related to J. B. Morrow, deceased. R. E. Morrow is an uncle of said J. B. Morrow and resides in California. Hearing of the contest was had twice before a jury, with each hearing resulting in a mistrial. The case was last set for trial in the Circuit Court of Pickens County for February 2, 1953. On that day Dorothy M. Dillsworth filed a motion for a change of venue. This motion, leaving out the introduction and prayer, is as follows:

'1. That J. B. Morrow died on towit, the 20th day of April, 1951, in Pickens County, Alabama, leaving a last will and testament, naming therein your petitioner as his sole devisee and legatee. Your petitioner and movant filed said will for probate in the Probate Court of Pickens County, Alabama, within the time allowed and provided by law and that a contest was filed by said defendant, and said cause was removed to the Circuit Court of Pickens County, Alabama, on motion of said defendant and contestant. That the estate of J. B. Morrow, deceased, consisted of personalty and real estate, all located in Pickens County, Alabama, chief of which real property being a farm generally known as the 'old Morrow home-place,' and that the said J. B. Morrow left kin or persons claiming relationship by marriage, or persons claiming family ties by blood or marriage in Pickens County, Alabama, said kin or persons of claiming kin or relationship have taken an active part in said cause and have discussed said cause in and about Pickens County in order to create prejudice and bias against the plaintiff, who is a non-resident of Pickens County, Alabama, and her interest in said cause.

'That said will contest has been tried before a jury on two occasions in said county, each of said trials having resulted in a mistrial. That said trials have created widespread interest and comment in said county, causing opinions to be formed as to the issues involved in said cause. That comment has been made and spread among a large segment of the citizens of said county regarding the actions of your petitioner following the death of the said J. B. Morrow, which are detrimental to your petitioner's interest in said cause; that there now exists prejudice in the minds of a large part of the citizens of said county against the plaintiff.

'3. That because the kin of J. B. Morrow, deceased, or those claiming family ties with the family of J. B. Morrow, deceased, are residents of Pickens County, Alabama, or have business or other interests in said county, they have many friends, associates, or acquaintances therein whereas your petitioner has few if any because she is a non-resident of said county; and that much prejudice has developed against your petitioner among the residents of said county by and through such kin, friends, associates, or acquaintances; and that there is a feeling among many citizens of said county that the estate of J. B. Morrow, deceased, should remain in the hands of the Morrow kin or those persons claiming family ties with the family of J. B. Morrow, deceased, despite their specific exclusion from said last will and testament.'

Hearing on this motion was set by Judge Roy Mayhall, as Special Judge of the Circuit Court of Pickens County, for February 13, 1953, with notice being given to counsel for R. E. Morrow. Both a motion to strike and demurrers were directed to this motion. The motion to strike was denied and the demurrers were overruled. Both parties offered affidavits in support of their respective positions. Thereupon, Judge Mayhall entered an order on February 13, 1953, granting the motion for a change of venue and removing the cause to Fayette County for trial, stating in his order as follows:

'said county being the nearest county from Pickens County free from proper objection by either of the parties to this cause.'

On February 24, 1953, R. E. Morrow filed in the Pickens County Circuit Court a motion to have this order set aside. On February 25, 1953, Judge Mayhall entered an order overruling said motion. On February 26, 1953, R. E. Morrow filed his petition for mandamus or certiorari in the Supreme Court. On the same day, a rule nisi was issued by this Court, together with an order staying the proceedings pending the hearing of the petition. The return day was first set for April 30, 1953, but later changed to April 15, 1953. Submission was had on April 15, 1953, on respondent's motion to quash the petition for mandamus and his demurrers to said petition, and was submitted on the merits on April 23, 1953. The submission on the demurrers to the petition was made without waiving the motion to quash, and the submission on the merits was without waiving both the motion to quash and the demurrers.

The argument is made in support of both the motion to quash the petition and the demurrers thereto that when the order changing the venue was entered the Circuit Court of Pickens County was thereby immediately divested of jurisdiction over the cause and, having lost jurisdiction, said court could not thereafter vacate or set aside the order; and since the trial court could not legally vacate or set aside the order, a mandate should not be directed to that court 'to do that which it could not legally do without such mandate.' Cited in support of this thesis are Ex parte Lancaster, 206 Ala. 60, 89 So. 721, 18 A.L.R. 706; Ex parte Campbell, 130 Ala. 171, 30 So. 385, and Ex parte Holton, 69 Ala. 164. While those authorities recognized the principle that when a motion for change of venue is granted, the trial court immediately loses jurisdiction and jurisdiction is immediately vested in the court to which the cause is removed, they are not authority for the precise question here presented. The jurisdiction there discussed has reference to authority to proceed with a hearing of the case itself, while here the question is whether the court granting the motion for change of venue loses all authority over the order as soon as it is made, and cannot thereafter modify, correct or vacate it.

Our view is that the Circuit Court of Pickens County, under the circumstances of this case, has not lost control over the order. All of the records and papers are still in Pickens County. None has been sent to Fayette County. For all practical purposes, the case still remains in Pickens County. Trial of the case cannot proceed in Fayette County until transmission there of the records and papers. On the other hand, trial cannot proceed in Pickens County because of the order changing the venue to Fayette County. In such situation the order changing the venue is in fieri and may be set aside, vacated, modified, or annulled by the court making it.

The case of Servatius v. Pickel, 30 Wis. 507, expresses our views on the question perhaps more clearly and more fully than any of the other authorities which have come to our attention. It is there stated:

'* * * the question thus presented is, whether the court had the power at the same term and before transmission (emphasis supplied), but whilst the cause remained in it, thus to vacate an order respecting the place of trial, and to make a new order in its stead? We are clearly of opinion that the court had such power. * * *

'But with regard to applications and motions...