In re Griffin

• Decision Date: 29 June 1912
• Citation: 177 Ala. 243,59 So. 303
• Parties: IN RE GRIFFIN.
• Court: Alabama Supreme Court

59 So. 303

177 Ala. 243

IN RE GRIFFIN.

Supreme Court of Alabama

June 29, 1912

Petition for certiorari by Leonard Griffin to review a decree of the probate court of Pike county, denying probate of a lost will. Denied.

A. G Seay, of Troy, for petitioner.

SIMPSON J.

This is a petition for a writ of certiorari to the judge of the probate court of Pike county.

On September 14, 1911, said Leonard Griffin filed his petition in said probate court, seeking to probate the last will and testament of Martha A. Motes, but stating that the original will had been lost, and could not be found. So the effort was to prove the contents of the lost will and have same probated. September 29, 1911, was set apart by the court as a day to hear said petition. On that day an attempt was made to contest the will, but was eliminated by the order of the court, to the effect that the party was not one of those authorized by law to contest. The court, however, proceeded to take testimony, and on the close of the testimony announced that it would "withhold its judgment and render it at some later day." On the 13th of October 1911, a decree was rendered as follows: "Probate Court Special Term, October 13, 1911. State of Alabama, Pike County: In the Matter of the Petition of Leonard Griffin to Probate the Last Will and Testament of Martha A. Motes, Deceased. This being the day to hear and pass upon the petition of Leonard Griffin to probate a certain instrument as the last will and testament of Martha A. Motes, deceased"--going on to adjudge the evidence insufficient to establish the will, and to dismiss the petition.

The contention of the petitioner in this case is that, as there was no adversary party in the court below, so that an appeal could not be taken, his remedy is by certiorari; and that the decree of the probate court is void, because rendered at a time when said court was not legally in session.

Section 5429 of the Code of 1907 provides for regular terms of the probate court on the second Monday in each month; and that "the judge may hold special or adjourned terms at any time whenever necessary for any special purpose."

It is undoubtedly true that a court is without authority to render a judgment, except at the time prescribed by law for its sittings. In the early case of Moore v. McGuire, 26 Ala. 461, the judgment in a bastardy case was rendered in vacation, and the court states: "He must be sitting as a court, and holding either a special or adjourned term, which must be certified upon the record, or a regular term, of which, being regulated by public law, this court would judicially take notice." Also: "The record furnishes no evidence that any such term was ordered or held." Pages 462, 463.

In the case of Harrison's Adm'r v. Meadors and Wife, 41 Ala. 274, it was held that, in the absence of anything in the record to the contrary, this court would presume that the regular term of the court was continued from day to day until the day on which the decree was rendered. Page 279.

In the case of Arrington et al. v. Roach, Adm'r, 42 Ala. 155, which involved an order for the sale of personal property, this court held that, under this provision of the Code, "all orders which may be made without notice, and are necessary, are to be considered as 'grantable as matters of course,' " and that, as no notice was required in regard to said sale, it was valid, though not shown to be made at any general or special term. Pages 157, 158.

In the case of Roach, Adm'r, v. Gunter et al., 42 Ala 239, where the probate court made an order reciting the filing of an application for the sale of land, and appointing another day for hearing the same, on which day, in a record denominating it "a special term," the petition was granted. It was held that the decree granting the petition was valid; the court saying: "Unquestionably the probate judge has the power in vacation to appoint special terms. There is in law no restriction of his authority to the appointment of...