McKnight v. Pate
| Decision Date | 05 November 1925 |
| Docket Number | 6 Div. 474 |
| Citation | 106 So. 691,214 Ala. 163 |
| Parties | McKNIGHT v. PATE. |
| Court | Alabama Supreme Court |
Rehearing Denied Jan. 21, 1926
Appeal from Circuit Court, Jefferson County; J.C.B. Gwin, Judge.
Appeal by James McKnight from a decree on final settlement of his account as guardian of Torre Pate, a minor. Transferred from Court of Appeals under Acts 1911, p. 450, § 6 (Code 1923, § 7326). Affirmed.
Pinkney Scott, of Bessemer, for appellant.
Goodwyn & Ross, of Bessemer, for appellee.
This is an appeal, via the circuit court, from a judgment of the probate court against appellant on the final settlement of his guardianship of the estate of appellee, then recently become of age. This appeal affirms error of the proceedings in the circuit court. There is a bill of exceptions showing the proceedings in the circuit court; but in that court there was no bill to show what had occurred in the probate court. Appellant moved the court for a writ of certiorari to bring up "a full and complete transcript of all the testimony taken and heard [in the probate court] in this case along with all exceptions reserved by this appellant in said trial." This can mean only that this appellant desired a transcript of a bill of exception reserved in and certified by the probate court, but the statement of facts incorporated in appellant's motion disclosed that no bill of exceptions had been reserved or certified in the probate court, and that the time within which such bill maybe signed was then long past, nor was there any evidence to the contrary. There was, therefore, no error in overruling appellant's motion for the writ of certiorari.
Appellant also moved in the circuit court that the cause be transferred to the jury docket, and that a jury be called for its trial. This motion was correctly overruled. On appeal from the probate to the circuit court in causes of this character the latter sits as a court of review, and the cause must be tried upon the record sent up from the probate court. If there be no bill of exceptions, no question of fact can be reviewed. Code §§ 6114, 6115, 6122; Ex parte Sumlin, 204 ala. 376, 85 So. 810.
The record here contains a bill of exceptions reserved in the circuit court, but this bill contains nothing going to show that there was error in the determination of the guardian's account on final settlement. The judgment of the probate court was properly affirmed in the circuit, and...
To continue reading
Request your trial
-
Franklin v. Bogue
... ... Coleman, 180 Ala. 267, 60 So. 885; ... Denson v. Crossley, 241 Ala. 445, 2 So.2d 916; Ex ... parte Sumlin, 204 Ala. 376, 85 So. 810; McKnight v ... Pate, 214 Ala. 163, 106 So. 691; Massey v ... Reynolds, 213 Ala. 178, 104 So. 494; Allen v ... Pugh, 206 Ala. 10, 89 So. 470 ... ...
-
State v. Ross Grady Ins. Agency, Inc.
...the probate court to the circuit court in causes of this character the latter sits as a court of review. McKnight v. Pate, supra (, 214 Ala. 163, 106 So. 691). But the finding of the probate court based on the examination of the witnesses ore tenus is presumed to be correct, and will not be......
-
Murphy v. Freeman
...taken in the probate court, and it is upon the same bill of exceptions that the case is submitted to this court. McKnight v. Pate, 214 Ala. 163, 106 So. 691. question here is therefore the same as it was in the probate and the circuit courts and on the same evidence. It is whether the admin......
- Ellis v. New York Life Ins. Co.
-
Alabama's Appellate Standards of Review in Civil Cases
...may not consider matter de novo); Martin v. Vreeland, 526 So. 2d 24 (Ala. 1988) (no trial de novo available on appeal); McKnight v. Pate, 214 Ala. 163, 106 So. 691 (1925) (outcome on appeal to be based upon record before the probate court). The standard of appellate review is exceedingly de......