Hollingsworth v. Miller

Decision Date23 October 1924
Docket Number7 Div. 447.
PartiesHOLLINGSWORTH ET AL. v. MILLER ET AL.
CourtAlabama Supreme Court

Rehearing Denied Nov. 27, 1924.

Appeal from Probate Court, Talladega County; W. B. Castleberry Judge.

Petition of William S. Hollingsworth and another to probate the will of James Taylor Hollingsworth, deceased, and contest by Ida Miller and others. From a decree for contestants, proponents appeal. Reversed and remanded.

Harrison & Stringer, of Talladega, for appellants.

Knox Acker, Dixon & Sims, of Talladega, for appellees.

SOMERVILLE J.

Where the record in a cause was filed at the first call of the division to which it belonged, after the appeal was taken the cause will not be dismissed for that the record was not filed in the Supreme Court within the time prescribed by law. S.-S. S. & I. Co. v. Webster, 183 Ala. 322, 62 So. 764; Williams v. Hyde, 10 Ala. App. 566, 65 So. 708. The motion to dismiss the appeal herein must therefore be overruled.

After several continuances, this cause was heard and decree rendered on the jury's verdict on March 12, 1923, at a special term of the probate court. The record shows no order continuing the special term, but on March 15, 1923, the unsuccessful proponents of the will filed their motion for a new trial, which was heard and overruled at a special term on April 9, 1923. It is the contention of appellees that the special term of the trial having expired upon the rendition of the decree, the motion filed thereafter was coram non judice, and could not be entertained. A further contention is that the motion not having been acted on until a special term in the following month, and no order of continuance having been made in March, it must have therefore lapsed and lost its standing, even had it been originally coram judice.

Section 5429 of the Code of 1907 required that "a court of probate must be held at the courthouse of each county on the second Monday in each month." This session was the regular term of the court which terminated at the end of the day, unless it was extended or adjourned by the court to a later time. Presumptively the term would be extended, as of course, so long as active business remained to be disposed of. But, if adjournment were made sine die, the term was ended so far as the trial of causes, or the making of orders, or the rendition of decrees, was concerned. Moore v. McGuire, 26 Ala. 461, 462; Blake v. Harlan, 75 Ala. 205; Wright v. State, 136 Ala. 51, 34 So. 187; Ex parte Griffin, 177 Ala. 243, 59 So. 303; Vaughan v. Bibb, 46 Ala. 153.

The hearing of this cause was at a special term, before a special probate judge. Whether or not the motion was seasonably filed, we need not determine. The record shows that the contestants acknowledged service of notice of the filing of the motion on the day it was filed, and also "of notice that said motion will be called up for hearing on the _____ day of March, 1923, and hereby waive any further, other, or different notice of the day and time when said motion is to be called up for hearing." The record further shows that the motion came on to be heard on its merits, and was considered by the court and overruled on its merits, and it does not show that any objection was made by the contestants, in the trial court, to such consideration and action. Under our decisions this operated as a waiver of the discontinuance or lapse of the motion, if any there had been. B. R. L. & P. Co. v. Hinton, 146 Ala. 273, 40 So. 988; Shipp v. Shelton, 193 Ala. 658 (3), 69 So. 102. And it was equally a waiver of the requirement that it must be filed during the term when the decree was rendered, if that term had in fact expired.

Our conclusion is that the action of the trial court in overruling the motion for new trial must be considered here on its merits, the contestants having waived in the lower court the objections now sought to be made for the first time on this appeal.

While the trial judge was exceedingly liberal in permitting witnesses for the contestants to testify that the testator was of unsound mind at or near the time of the execution of the will, and some of them were but dubiously qualified in the premises, the matter was one resting in his sound judicial discretion, the exercise of which will not be revised except for manifest abuse. Wear v. Wear, 200 Ala. 345, 76 So. 111; Chandler v. Chandler, 204 Ala. 164, 167, 85 So. 558. We cannot affirm that there was such an abuse of discretion here.

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    • January 23, 1936
    ... ... King v. Scott, 217 Ala. 511, 116 So. 681; ... Childers v. Samoset Cotton Mills, 213 Ala. 292, 104 ... So. 641; Hollingsworth et al. v. Miller et al., 212 ... Ala. 187, 101 So. 881. The effect of these decisions is, that ... a motion for a new trial has the effect of ... ...
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