Luther v. Luther

• Decision Date: 10 April 1924
• Docket Number: 7 Div. 425.
• Citation: 211 Ala. 352,100 So. 497
• Parties: LUTHER ET AL. v. LUTHER.
• Court: Alabama Supreme Court

100 So. 497

211 Ala. 352

LUTHER ET AL. v. LUTHER.

7 Div. 425.

Supreme Court of Alabama

April 10, 1924

Rehearing Denied May 29, 1924.

Appeal from Probate Court, De Kalb County; W. T. Murphree, Special Judge.

Petition of Morrison Luther to probate an instrument as the last will and testament of Gaston C. Luther, deceased, and contest by Abner Luther and others. From a decree for proponent contestants appeal. Reversed and remanded.

A. E Hawkins, of Ft. Payne, and Street & Bradford, of Guntersville, for appellants.

Orr &amp Killcrease, of Albertville, Goodhue & Lusk, of Gadsden, and James J. Mayfield, of Montgomery, for appellee.

THOMAS J.

Appelle made a motion to dismiss the appeal on grounds, in substance: (1) That a discontinuance occurred in this court by reason of the failure to docket said cause therein by filing a certificate of appeal or transcript for a period of over two years after the appeal was taken; and (2) that the failure to file the transcript within 60 days after the signing of the bill of exceptions authorized this court to dismiss the appeal, unless good cause was shown why the transcript had not been filed.

It appears that there was jury and verdict on June 8, 1921, that the judgment thereon and that appealed from was rendered June 10, 1921 (Lewis v. Martin, 210 Ala. 401, 98 So. 635), that appeal bond was filed and approved June 25, 1921, that certificate of appeal was filed in this court June 29, 1923, and transcript filed January 7, 1924. The appeal was taken within the time prescribed by law. Code 1907, § 2856; Holmes v. Holmes, 210 Ala. 227, 97 So. 628; Pepper v. Horn, 197 Ala. 395, 73 So. 46; Minge v. Smith, 206 Ala. 330, 89 So. 473; Bowe v. Pierson, 206 Ala. 250, 89 So. 711. Thereafter, was the appeal abandoned or discontinued?

The statutes (Gen. Acts 1919, p. 85; Code 1907, §§ 2855, 2856) as to taking appeals and proceedings in this court were recently considered in Holmes v. Holmes, 210 Ala. 227, 97 So. 628, and Jacobs v. Goodwater Graphite Co., 205 Ala. 112, 87 So. 363.

There is a well-recognized distinction between judicial and ministerial duties. The probate judge was disqualified only to discharge or perform judicial duties, in the instant probate and contest thereof. It continued to be his duty, as the probate judge of the county, to perform all merely ministerial acts, such as keeping the records, making transcripts, certifying thereto, etc. Code 1907, §§ 4626, 5419, 5421, 5439; Hayes v. Collier, 47 Ala. 726.

The reasons for the rule do not apply to ministerial acts, and it would be useless, impracticable, and inconvenient to require a special probate judge to perform all the ministerial duties arising in the case in which he is appointed.

We have carefully examined the evidence in support of and against the motion, and are of opinion that there was no waiver or discontinuance of the appeal under the facts of this case. Moreover, the delay of appellee in making his motion to dismiss the appeal in a waiver of the right to dismiss. If appellant could have gotten a certificate of appeal so could appellee, yet he did not do so until after a proper certificate of appeal and the transcript were both filed. The motion to dismiss the appeal should have been made without undue delay (Street v. Street, 113 Ala. 333, 21 So. 138), which was not done by appellee. Generally, the question of dismissal is addressed to the sound discretion of this court. Rule 42, p. 1517 of Code; Collier v. Coggins, 103 Ala. 281, 15 So. 578; Jacobs v. Goodwater Graphite Co., supra; Martin Machine Works v. Miller, 132 Ala. 629, 32 So. 305. This appellant will not be prejudiced by the failure of the probate judge to discharge his ministerial duties. Kimbrell v. Rogers, 90 Ala. 339, 7 So. 241; Martin Machine Works v. Miller, supra. We deny the motion to dismiss the appeal under the facts shown by the affidavits.

The motion was to strike the bill of exceptions for the reason that it was presented to Special Judge Murphree at Gadsden, and that he at that place indorsed the fact of presentation and signed the same as the bill of exceptions, as the judge presiding at the trial at special probate judge. No other bill of exceptions was ever presented to or signed by him. The bill of exceptions was not established in this court or by a justice thereof, as provided by law when such presiding judge has not signed the same, etc. Code, §§ 3021, 3022; Meade v. Meade, 210 Ala. 547, 98 So. 812; Cent. of Ga. v. Robins, 209 Ala. 6, 95 So. 367.

Where it is not sought to contradict the recitals of record, but the effort is only to show that a bill of exceptions was never properly signed so as to become a part of the record, it has been uniformly held that this fact may be shown by parol; that a purported bill of exceptions is not authentic, or was not signed by the official within his territorial jurisdiction. Mauney v. Electric Construction Co., 210 Ala. 554, 98 So. 874; L. & N. R. Co. v. Malone, 116 Ala. 600, 22 So. 897; Ex parte Walker, 149 Ala. 637. 43 So. 130; Rainey v. Ridgeway, 151 Ala. 532, 43 So. 843; Baker v. Central of Ga. Ry. Co., 165 Ala. 466, 51 So. 796; Buck Creek Lbr. Co. v. Nelson, 188 Ala. 243, 66 So. 476; Ex parte City Bank & Trust Co., 200 Ala. 440, 76 So. 372. And it has been held that a judicial officer can only perform judicial acts within the territorial limits within which he is authorized to act as such judicial officer; and in the case of a circuit judge, his jurisdiction is coextensive with the state. Ex parte Nelson & Kelly, 62 Ala. 376 Hughes v. Albertville Merc. Co.,

173 Ala. 559, 563, 56 So. 120; Brue v. McMillan, 175 Ala. 416, 419, 57 So. 486. See, also, 4 C.J. pp. 247, 251.

The territorial limits of the jurisdiction of a probate judge being coextensive with the boundaries of such county, such judge must perform all judicial acts within that county, or else such acts are absolutely void. Qualls v. Qualls, 196 Ala. 524, 72 So. 76; Rainey v. Ridgeway, 151 Ala. 532, 43 So. 843; Hagan Bros. v. Beaty, 201 Ala. 678, 79 So. 250; Edinburgh Co. v. Peoples, 102 Ala. 241, 14 So. 656; State ex. rel. Atty. Gen. v. Tally, Judge, etc., 102 Ala. 25, 15 So. 722; Brue v. McMillan, 175 Ala. 416, 57 So. 486.

The Rainey-Ridgeway Case, above cited, is similar to the case at bar. In that case by agreement a will contest had been heard by a special judge of probate in the probate court of Tallapoosa county. This special judge of probate made an order granting an extension of time for the signing of the bill of exceptions. This order being made or entered beyond the limits of Tallapoosa county, this court held that the bill of exceptions be stricken, for the reason that the judicial power and function of a probate judge is confined within the territorial limits of the county in which he is elected. The order granting the extension of time for signing the bill of exceptions was, under the law, within his discretion, and being an official act involving judicial discretion, was a judicial act; and having been made without the territorial limits of the official jurisdiction of such official, was a nullity. It follows that the instant bill of exceptions be stricken because it never became a part of the record in the case-and the motion to that end is granted.

The matters presented by the appeal, and seeking to review matters and rulings shown by the record proper, are assignments of error challenging ruling in sustaining demurrer to the ground of contest contained in plea No. 7. The record shows that (on January 3, 1921) contestants filed grounds of contest numbered one to seven, inclusive, and that the special judge sustained demurrer to the last ground. It was in the following language:

"7. Contestants specially plead further that said alleged will should not be probated for that subsequent to the execution of said alleged will the said Gaston Luther did revoke said alleged will by a writing described by the testator and attested by two witnesses in whose presence the said Gaston Luther signed said writing and who in the presence of said Gaston Luther and in the presence of each other signed said writing as attesting witnesses."

The record further shows that on the same day contestants filed grounds of contest numbered 6 and 7. The latter was in the following words:

"Contestants specially plead further why said alleged will and testament propounded by said Morrison Luther should not be probated, that subsequent to the alleged execution of said alleged will and testament, said Gaston C. Luther did execute a writing in the presence of two witnesses, that said Gaston C. Luther did sign said writing in the presence of said witnesses, and that said witnesses did sign their names as witnesses to said writing in the presence of said Gaston C. Luther and in the presence of each other and in said writing, a true copy of which is hereto attached as a part hereof, the said Gaston C. Luther made the following declaration. 'That said will (meaning the will offered for probate) is void as a new will has been made since that time.' And that said declaration was made by said Gaston C. Luther with the intention on his part of revoking said alleged will propounded by said Morrison Luther for probate.

"A. E. Hawkins,

"Street & Bradford,

"Attys. for contestant.

"Filed Jan. 3, 1921. W. W. Haralson Special Judge of Probate Before me, C. D. King, a notary public, personally comes G. C. Luther, who being first duly sworn deposes and says that during the month of June or July, 1920, he made a will which has been lost, destroyed or stolen. Said will was witnessed by Jim Israel, R. Y. Williams and Dr. Lee Weathington; that said will is void, as new will has been made since that time.

"G. C. his X mark Luther.

"Witness: C. D. King. C. T.

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