Lowry v. Hill

• Decision Date: 16 October 1924
• Docket Number: 7 Div. 448.
• Citation: 101 So. 586,211 Ala. 645
• Parties: LOWRY v. HILL.
• Court: Alabama Supreme Court

101 So. 586

211 Ala. 645

LOWRY v. HILL.

7 Div. 448.

Supreme Court of Alabama

October 16, 1924

Appeal from Probate Court, De Kalb County; G. L. Malone, Judge.

Petition of G. E. Hill to probate the will of Lela Hill Lowry, with contest by C. W. Lowry. Decree for proponent, and contestant appeals. Appeal dismissed.

J. V Curtis and I. M. Presley, both of Fort Payne, for appellant.

Isbell & Scott, of Fort Payne, for appellee.

MILLER J.

This is a proceeding on contest as to the validity of a will. The cause was submitted in this court by the parties on June 3 1924, on briefs, on motions, and on merits.

It appears the appellee on January 14, 1924, filed motion to strike the transcript and dismiss the appeal, and assigns these and other grounds, because there is no appeal bond as required by law, and because the transcript has not been prepared in conformity with Supreme Court rule 26.

No certificate of appeal was filed in this court before this cause was submitted on this motion as required by rule 43 of this court. When this cause was submitted on this motion and on the merits on June 3d, 1924, there was no certificate of appeal in the record, there was nothing in the record to show an appeal had been taken by the appellant, there was no appeal bond in the record, and there was nothing therein to show an appeal bond had been given and approved as the statute directs, and the rules of this court require. Rules 26 and 43; §§ 2837, 2856, Code 1907.

When this cause was submitted to this court on June 4, 1924, there was no certificate by the judge of probate in the record proper, or on file as part of the record, that an appeal was taken, and the time when, from the decree in this cause. These facts so certified give this court jurisdiction of the case. Section 2837, Code 1907; rule 30 p. 1513, Code 1907; Thompson v. Lea, 28 Ala. 453; Robinson v. Murphy, 69 Ala. 547; Boshell v. Phillips, 207 Ala. 628, 93 So. 576.

It is true that on June 4, 1924, the probate judge issued a certificate which was filed in this court on June 6, 1924 stating that an appeal was taken and security for costs in the sum of $300 was given. This was filed after this cause was submitted, and was not in response to a certiorari writ from this court to complete the record, and it fails to state when the appeal was taken, and it cannot, under these circumstances, be considered as part of the record on this motion. It came too late. Authorities supra. It is also true that on June 14, 1924, the judge of probate made and certified to a copy of the appeal bond; it was filed in this court June 16, 1924; it was not in response to an order from this court to complete the record; the bond was made and approved on June 14, 1923, and the decree which it purports to appeal from was rendered as shown by the record on June 15, 1923. This certified copy of the appeal bond...