Gilbreath v. Wallace

CourtSupreme Court of Alabama
Writing for the CourtJONES
Citation292 So.2d 651,292 Ala. 267
PartiesJeri Lynn GILBREATH, a minor By and Through her guardian ad litem, W. W. Watson and L. O. Gilbreath v. Ruth WALLACE. SC 456.
Decision Date04 April 1974

Page 651

292 So.2d 651
292 Ala. 267
Jeri Lynn GILBREATH, a minor By and Through her guardian ad litem, W. W. Watson and L. O. Gilbreath
v.
Ruth WALLACE.
SC 456.
Supreme Court of Alabama.
April 4, 1974.

W. W. Watson, guardian ad litem of Jeri Lynn Gilbreath, and Beck & Beck, Fort Payne, for appellants.

[292 Ala. 268] Traylor, Baker & Cole, Fort Payne, for appellee.

JONES, Justice.

The ultimate question for decision on this appeal is whether Act No. 1734, Acts of Alabama, Regular Session, 1971, as

Page 652

amended by Act No. 189, 3rd Special Session, 1971, providing for a 6-member jury in the DeKalb Counnty Court, is constitutional as applied to the trial of a will contest. Stated otherwise, did the trial judge of the DeKalb County Court rule correctly in denying the appellants' (contestants below) motion for a 12-member jury and in overruling the objection to a 6-member jury in the context here applicable? We answer 'No' to the question as alternatively posed, and we reverse and remand.

Appellee, Ruth Wallace, a niece-in-law of testator, as sole beneficiary, filed for probate the purported Last Will and Testament of Marcus D. Gilbreath, a widower with no children. Appellant, L. O. Gilbreath, a brother of testator, filed a contest of the offered will, claiming lack of testamentary capacity and undue influence. A guardian ad litem was appointed for a minor heir who joined in this contest. The Probate Court transferred the proceeding to the County Court. Over the contestants' objection, the case was tried to a struck jury of six members as provided by the Act in question. The proponent of the will prevailed. Hence this appeal.

It should be noted that the DeKalb County Court, created by Act No. 418, Acts of Alabama, Regular Session, 1961, is a court of general jurisdiction. In civil cases it has all the powers of a circuit court, except equitable jurisdiction. Will contests are removed to the county court [292 Ala. 269] prior to probate. Prior to the passage of Act No. 1734, jury trials in the DeKalb County Court consisted of 12-member juries just as in the circuit court. The right of appeal from the DeKalb County Court is directly to the appropriate appellate court rather than to the circuit court.

Act No. 1734, Acts of Alabama Regular Session, 1971, as amended by Act No. 189, 3rd Special Session, 1971, provides in pertinent part as follows:

'Section 1. The trial of all civil and criminal cases in the DeKalb County Court which according to law are triable by jury shall be tried by a jury composed of six members to be drawn, summoned, selected, and empaneled as provided in Code of Alabama 1940, Title 30, except that the list from which any six-man jury is to be struck may consist of a minimum of 12 jurors instead of the minimum number prescribed by (law).'

It is well settled that the legislature may confer the right of trial by jury in actions in which the right did not previously exist. See Stevenson v. King, 243 Ala. 551, 10 So.2d 825 (1942). Having conferred such a right, the legislature has the power to abolish that right. It therefore follows that the legislature might also constitutionally limit or abridge that right. Hence, in Alabama, if the right of trial by jury in a will contest exists solely by legislative grace, then Act No. 1734, which affords the parties a 6-man jury, would be clearly constitutional in this context. On the other hand, if the right to a trial by jury in a will contest is a right secured by the Alabama Constitution, then the legislature may not abridge or limit the Substance of that right. Thus is raised the first question which must be resolved on this appeal: Does there exist under the Alabama Constitution of 1901, the right of trial by jury in a will contest?

The right of trial by jury in civil cases is protected in the federal courts by the Constitution of the United States and in our state courts by Section 11 of the Alabama Constitution of 1901, which provides: 'That the right of trial by jury shall remain inviolate.'

Unlike the Federal Constitution which preserves the right to jury trial as of 1791, 1 Alabama's Constitution effected a 'freezing' of the right to jury trial as of 1901. Section 11 did not extend the right to cases in which it did not exist at that time. Miller v. Gaston, 212 Ala. 519, 103 So. 541 (1925); In re One Chevrolet Automobile,

Page 653

205 Ala. 337, 87 So. 592 (1921); Alford v. State, ex rel. Attorney General, 170 Ala. 178, 54 So. 213 (1910). See also Thomas v. Bibb, 44 Ala. 721 (1870); Tims v. State, 26 Ala. 165 (1855), and Boring v. Williams, 17 Ala. 510 (1850).

The correctness of these general principles cannot be disputed. However, as is often the case, generality leads to oversimplification. In several of our later decisions, it was held that the constitutional guaranty of trial by jury does not extend to causes unknown to the common law or to the statutory law as it existed at the time of the adoption of the Constitution. See, e.g., Porter v. Alabama Farm Bureau Mutual Cas. Ins. Co., 279 Ala. 499, 187 So.2d 254 (1966); City of Mobile v. Gulf Development Co., 277 Ala. 431, 171 So.2d 247 (1965); Miller v. Gaston, supra.

This proposition lends itself to two possible interpretations. One construction is that the constitutional guaranty of trial by jury extends Only to common law causes of action existing at the time of adoption of the 1901 Constitution, i.e., that the guaranty does Not extend to statutory law existing at that time. The other construction is that the guaranty of trial by jury extends only to causes existing either at common law or under statutory law at the time of the adoption of the 1901 Constitution. The courts of the several states are divided on this question, some having adopted the former interpretation and some, including [292 Ala. 270] Alabama, being committed to the latter. In one of our older cases. Tims v. State, supra, the principle is stated:

'But it also urged, that the act is in conflict with the twenty-eighth section of the bill of rights, which declares 'that the trial by jury shall remain inviolate.' In relation to this position, it is only necessary to observe, that it was not intended by this clause of the constitution to extend the right of jury trial to cases which were unknown either to the common or statute law, at the time of the adoption of that instrument.'

In Alford v. State, supra, the court quoted from Tims v. State, supra, and set forth the principle as it applies to both civil and criminal cases:

'The right (trial by jury) is confined to those classes of cases in...

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41 practice notes
  • Lynch v. Baxley, Civ. A. No. 74-89-N.
    • United States
    • United States District Courts. 11th Circuit. Middle District of Alabama
    • December 14, 1974
    ...clearly constitutional" if the right to trial by jury exists, as in this situation,18 solely by legislative grace. Gilbreath v. Wallace, 292 Ala. 267, 292 So.2d 651, 652 (9) Record of proceedings. A full record of the commitment proceedings, including findings adequate for review, shall be ......
  • Smith v. Schulte
    • United States
    • Supreme Court of Alabama
    • August 18, 1995
    ...(2) those causes of action afforded by pre-1901 statutes. This principle was never more forcefully stated than in Gilbreath v. Wallace, 292 Ala. 267, 270, 292 So.2d 651, 653 (1974), where the Court declared: "Alabama's Constitution effected a 'freezing' of the right to jury trial as of 1901......
  • Ex parte James
    • United States
    • Supreme Court of Alabama
    • January 10, 1997
    ...judgment as to whether an action is unconstitutional. As authority for his remedy order, Judge Reese cites Gilbreath v. Wallace, 292 Ala. 267, 292 So.2d 651, 655 (1974); State v. Skeggs, [State ex rel. Meyer v. Greene], 154 Ala. 249, 46 So. 268, 270 (1908); and Ballentyne v. Wickersham, 75 ......
  • Clark v. Container Corp. of America, Inc.
    • United States
    • Supreme Court of Alabama
    • September 27, 1991
    ...where the right of trial by jury was secured by statute at the time the Alabama Constitution of 1901 was ratified. 2 Gilbreath v. Wallace, 292 Ala. 267, 292 So.2d 651 (1974); Alford v. State ex rel. Attorney General, 170 Ala. 178, 54 So. 213 (1910); Tims v. State, 26 Ala. 165 In Baader v. S......
  • Request a trial to view additional results
41 cases
  • Lynch v. Baxley, Civ. A. No. 74-89-N.
    • United States
    • United States District Courts. 11th Circuit. Middle District of Alabama
    • December 14, 1974
    ...clearly constitutional" if the right to trial by jury exists, as in this situation,18 solely by legislative grace. Gilbreath v. Wallace, 292 Ala. 267, 292 So.2d 651, 652 (9) Record of proceedings. A full record of the commitment proceedings, including findings adequate for review, shall be ......
  • Smith v. Schulte
    • United States
    • Supreme Court of Alabama
    • August 18, 1995
    ...(2) those causes of action afforded by pre-1901 statutes. This principle was never more forcefully stated than in Gilbreath v. Wallace, 292 Ala. 267, 270, 292 So.2d 651, 653 (1974), where the Court declared: "Alabama's Constitution effected a 'freezing' of the right to jury trial as of 1901......
  • Ex parte James
    • United States
    • Supreme Court of Alabama
    • January 10, 1997
    ...judgment as to whether an action is unconstitutional. As authority for his remedy order, Judge Reese cites Gilbreath v. Wallace, 292 Ala. 267, 292 So.2d 651, 655 (1974); State v. Skeggs, [State ex rel. Meyer v. Greene], 154 Ala. 249, 46 So. 268, 270 (1908); and Ballentyne v. Wickersham, 75 ......
  • Clark v. Container Corp. of America, Inc.
    • United States
    • Supreme Court of Alabama
    • September 27, 1991
    ...where the right of trial by jury was secured by statute at the time the Alabama Constitution of 1901 was ratified. 2 Gilbreath v. Wallace, 292 Ala. 267, 292 So.2d 651 (1974); Alford v. State ex rel. Attorney General, 170 Ala. 178, 54 So. 213 (1910); Tims v. State, 26 Ala. 165 In Baader v. S......
  • Request a trial to view additional results

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