Ex parte Zepernick

• Decision Date: 18 June 1953
• Docket Number: 1 Div. 539
• Citation: 66 So.2d 757,259 Ala. 493
• Parties: Ex parte ZEPERNICK.
• Court: Alabama Supreme Court

Page 757

66 So.2d 757

259 Ala. 493

Ex parte ZEPERNICK.

1 Div. 539.

Supreme Court of Alabama.

June 18, 1953.

Rehearing Denied Aug. 11, 1953.

Vickers & Thornton, Mobile, for petitioner.

Howell & Johnston and Caffey, Gallalee & Caffey, Mobile, for respondent.

STAKELY, Justice.

The question for decision is whether the circuit court has original and independent jurisdiction of a suit against the personal representative of a decedent for wrongful death committed by decedent for which a claim has been filed in the office of the probate court in the pending administration of the estate of the decedent. By Act approved September 5, 1951, which appears as § 150, Title 7, Code of 1940, it is provided as follows:

'All actions and causes of action on contract, express or implied, and all personal actions, except for injuries to the reputation, survive in favor of and against personal representatives; and all personal causes of action survive against the personal representative of a deceased tort feasor.'

This case arises on a petition for a writ of prohibition or other appropriate writ directed to the Hon. Claude A. Grayson, as Judge of the 13th Judicial Circuit of Alabama, who overruled demurrers to a complaint filed against the personal representative of a decedent for an alleged tort committed by the decedent. The cause is submitted here on the petition and on the demurrer of Judge Grayson.

The petition in this case alleges the death of Linnie W. Cornell and the appointment of Ada W. Zepernick, the petitioner herein, as executrix of her estate by the Probate Court of Mobile County, Ala.

On May 19, 1952, a claim was filed in the Probate Court of Mobile County, Alabama, by Walter N. Malone as administrator of the estate of Stella Kate Malone, deceased, pursuant to the provisions of § 211, Title 61, Code of 1940, for the wrongful death of Stella Kate Malone in an automobile accident in Greene County, in the State of Mississippi, on towit the 27th day of October, 1951, the complaint alleging that the death of Stella Kate Malone was caused by the negligent operation of an automobile by Linnie W. Cornell. The statutes of the State of Mississippi are set up and it is also alleged that under the statutes of Mississippi the cause of action for wrongful death survives the death of Linnie W. Cornell, the tort feasor. On the 30th day of December, 1952, the petitioner here filed a contest of the aforesaid claim in the Probate Court of Mobile County, Alabama.

On the 19th day of June, 1952, suit was filed against the petitioner in the Circuit Court of the 13th Judicial Circuit of Alabama on the same claim filed in the Probate Court of Mobile County, Alabama, as hereinabove set out. Thereafter a demurrer was interposed to the complaint, on the ground among others that the circuit court did not have jurisdiction of said cause of action but that said claim must be heard in the probate court from which an appeal would lie to the circuit court. Thereafter, on the 12th day of January, 1953, the respondent Judge, the Hon. Claude A. Grayson, overruled the demurrer, holding, in effect, that the circuit court did have jurisdiction notwithstanding the fact that the aforesaid claim was pending in the probate court.

It is contended here as it was contended in the circuit court that the circuit court is without jurisdiction in this case. If the petitioner is correct in this contention, it is obvious that this court has the right to issue the writ of prohibition or other remedial writ. Ex parte State, 150 Ala. 489, 43 So. 490, 10 L.R.A.,N.S., 1129; Ex parte Wilkinson, 220 Ala. 529, 126 So. 102.

Of course, the cause of action in this case, if any, is determined by the law of the State of Mississippi, where the alleged tort was committed. Dawson v. Dawson, 224 Ala. 13, 138 So. 414.

The Constitution of Alabama of 1901 gives a complete answer to the contention that the circuit court has no jurisdiction of the aforesaid action. Section 143 of the Constitution of 1901 provides as follows:

'The circuit court shall have original jurisdiction in all matters civil and criminal within the state not otherwise excepted in this constitution; but in civil cases, other than suits for libel, slander, assault and battery, and ejectment, it shall have no original jurisdiction except where the matter or sum in controversy exceeds fifty dollars.'

Pursuant to the foregoing constitutional provision, subsection 1 of § 126, Title 13, Code of 1940 provides that,

'The circuit court has authority:

'1. To exercise original jurisdiction of all felonies and misdemeanors; of all actions for libel, slander, assault and battery and of ejectments without regard to the amount involved; and of all other suits and actions at law when the matter or sum in controversy exceeds fifty dollars; and in all causes in equity.'

There is no statute which undertakes to take away the jurisdiction conferred by the constitution and statute on circuit courts in such cases. By § 216, Title 61, Code of 1940, it is only provided that the personal representative of an estate 'may give notice in writing to the claimant * * * that such claim is disputed' and thereupon the probate judge or the chancellor, if the case has been removed, 'shall, on written application of either the personal representative or the claimant, hear and pass on the validity of such claim' with the right in either party when judgment on the claim is rendered by the probate court to appeal to the circuit court where the case is triable de novo and with a jury, if one is demanded.

This section merely confers jurisdiction on the probate court to hear and determine a properly filed claim if the personal representative elects to contest it in that court and if the personal representative or the claimant thereafter makes written application to that court to hear and pass on the validity of such claim. However there is nothing in the section which purports to take away from the circuit court the jurisdiction which it admittedly had when the statute embodied in the section was enacted. As a matter of fact the jurisdiction conferred on the probate court is conditioned first, on a contest of the claim by the personal representative and second, on a written application of such personal representative or the claimant for the probate court to hear and determine the claim. Accordingly it is recognized that the jurisdiction conferred may never be invoked and accordingly it follows that it was never intended to be exclusive of the jurisdiction expressly conferred on the circuit court by the constitution and the statute. At most the section undertakes to confer partially concurrent jurisdiction to hear and determine the validity of a claim properly filed in the probate court if the required conditions are met. We say partially concurrent jurisdiction since a proceeding under § 216, Title 61, Code of 1940, 'does not lead to a moneyed judgment on which execution may issue. Its only purpose is to fix the rights of parties to a fund in trust, being administered in that court, so as to determine who is entitled to it on distribution.' Tillery v. Commercial National Bank of Anniston, 241 Ala. 653, 4 So.2d 125, 127. The statute so providing for contest of claims filed in the probate court does not withdraw the jurisdiction that previously resided exclusively in the circuit court to determine the validity and amount of such claims.

An analogous situation was presented to this court at an early date when our statute undertook to confer on Justices of the Peace jurisdiction of civil cases not involving over $100.00. Under the constitution and by statute circuit courts then had jurisdiction in civil matters where the amount in controversy exceeded $50.00. A statute gave Justice of the Peace Courts jurisdiction in 'all civil cases wherein the amount in controversy does not exceed one hundred dollars'. Const.1875, art. 6, § 26. It was held that this statute did not take away jurisdiction of the circuit court in civil cases involving between $50.00 and $100.00. In so holding the court said:

'The jurisdiction given to justices of the peace is not excepted out of that bestowed on the circuit court. * * * These grants make the jurisdiction of the circuit court and of the justice of the peace, when the matter or sum in controversy is over the value of $50.00, and not greater than one hundred dollars, concurrent. In such a case, a litigant may sue in either court.' Carew & Son v. Lillienthall, 50 Ala. 44.

We note another case which is against a construction which would give the probate court exclusive jurisdiction, Kansas City, M. & B. R. R. Co. v. Whitehead, 109 Ala. 495, 19 So....