McKenzie v. Jensen

• Decision Date: 20 January 1916
• Docket Number: 1 Div. 892
• Citation: 195 Ala. 36,70 So. 678
• Parties: McKENZIE v. JENSEN.
• Court: Alabama Supreme Court

70 So. 678

195 Ala. 36

McKENZIE v. JENSEN.

1 Div. 892

Supreme Court of Alabama

January 20, 1916

Appeal from Circuit Court, Baldwin County; A.E. Gamble, Judge.

Escheat proceedings by N.G. McKenzie, administrator of the estate of Jorgan Jensen, deceased, opposed by Christian V.T. Jensen. The probate court dismissed the proceedings, the circuit court dismissed the administrator's appeal from that judgment, and the administrator appeals. Reversed and remanded.

D.B Cobbs, of Mobile, and S.C. Jenkins, of Bay Minette, for appellant.

Rickarby & Austill, of Mobile, for appellee.

MAYFIELD J.

Appellant is administrator of the estate of Jorgan Jensen, deceased. Several years after appellant was appointed such administrator by the probate court of Baldwin county appellee and others, claiming to be the heirs and distributees of appellant's intestate, appeared and sought to have settlements of the estate, and to resist charges for compensation made or filed by the administrator. The administrator denied or disputed that appellee was an heir or distributee, and claimed that intestate left no heirs or distributees, or that he was unable to find such heirs or distributees, and he thereafter instituted escheat proceedings under chapter 82, §§ 3918-3926 of the Code of 1907. After this matter had been pending for some time, and evidence was taken and a hearing had, the probate court decided that appellee and others were entitled to the proceeds of the estate as heirs and distributees, and therefore dismissed the escheat proceedings. From the order dismissing the escheat proceedings, appellant appealed to the circuit court, where a motion was made by appellee to dismiss the appeal. The motion was granted, and from that judgment of the circuit court this appeal is prosecuted.

No bill of exceptions was ever had of the proceedings in the probate court. An application was made in the circuit court, in the nature of a petition for mandamus, to require the probate judge to approve and sign a bill of exceptions; but this motion was not passed on by the circuit court or the judge thereof, and of course we cannot review a question which has not been passed on by the lower court. The bill of exceptions taken in the circuit court informs us that the only question passed upon by the circuit court was whether or not the appeal should be dismissed; consequently this is the only ruling we can now review or pass upon, this being not an original proceeding here, but merely an appeal from a judgment of the lower court.

Whether or not the escheat proceeding in the probate court was properly dismissed depended upon the evidence before that court on the question of whether or not the intestate left any heirs or distributees. The circuit court could not review the correctness of the decision of the probate court on the question, without the evidence which was before the latter. We are of the opinion that the administrator might appeal from the decree or order of the probate court or from the decree or order of even the judge thereof, dismissing the escheat proceedings, but that such decree or order could not be reviewed by the circuit court, or by this court, without a bill of exceptions of the proceedings in the probate court.

It conclusively appears that the only dispute or difference between the litigants is whether or not appellee is an heir or distributee of appellant's intestate, or, in other words, whether the estate descended or escheated. The probate court, after a hearing, on the evidence decided that it descended. In the absence of a bill of exceptions showing the proceedings and the evidence on the hearing, the judgment of the probate court cannot be revised on appeal. This was held by this court long ago, in the case of Truett v. Woodham, 98 Ala. 605, 13 So. 519, where it was said by Stone, C.J., construing a similar statute in the Code of 1886:

"Appeals in this class of cases are authorized by section 3641 of the Code to be taken from the probate court by the party aggrieved to

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