Ex parte Walker

• Citation: 149 Ala. 637,43 So. 130
• Parties: EX PARTE WALKER ET AL.
• Decision Date: 14 February 1907
• Court: Supreme Court of Alabama

43 So. 130

149 Ala. 637

EX PARTE WALKER ET AL.

Supreme Court of Alabama

February 14, 1907

Petition by Trimble Walker and others for a writ of mandamus. Denied.

Trimble Walker and Adele Baker were the contestants in a cause pending in the probate court of Montgomery county, wherein B W. Walker was the contestee on a petition to probate the will of their grandmother. Judgment was rendered for contestee on the 23d day of August, 1904, and an appeal was taken from said judgment to the circuit court of Montgomery county on the 22d day of September, 1904, and a bill of exceptions filed in the probate court in said cause on the 6th of September, 1904, and signed by the judge of probate on the 18th of February, 1905. After the adjournment of said probate court, and after the expiration of six months from the time said judgment was rendered in said court, and on the 23d day of March, 1905, the contestee filed a motion in the probate court to strike the bill of exceptions, and on the 29th day of April, 1905, the probate court entered an order striking said bill of exceptions from the record. On the 24th of May 1905, contestants filed a motion to restore said bill of exceptions to the record in said cause, and said motion was overruled by the court. On May 29, 1905, the contestant in open court and while the court was in session made an oral motion for a writ of certiorari, directed to the judge of the probate court, commanding him to send up the complete record in the cause. The motion was granted. A writ of certiorari was issued, directed to the judge of probate, and commanded him to send up the full record in the case. Responding to this writ, the judge of probate sent up what he termed a "true and complete transcript" in said cause, and on his return made the following indorsement: "The paper purporting to be a bill of exceptions was by some inadvertence marked 'Filed' on the 6th of September 1904, before it was signed. Afterwards said paper was stricken from the file in pursuance of the order of this court on the proceedings and for the cause shown in the order of this court, a transcript of which is certified to the circuit court as a part of this return. The original of said paper so struck, marked '10,' is hereby sent up to the circuit court, but not as a part of the record of this court." On June 2, 1905, petitioners filed in the circuit court a petition praying that "the bill of exceptions in its present shape, as sent up by said probate judge in response to the writ of certiorari issued to him by this court, be restored to the record in this case, and that the same be treated and considered by this court as the proper and legal bill of exceptions in this case." This motion was refused. Contestant filed another motion, setting up a lot of facts concerning the bill of exceptions, and attaching the bill of...