McLendon v. Stephens

• Decision Date: 23 November 1899
• Parties: MCLENDON ET AL. v. STEPHENS ET AL.
• Court: Alabama Supreme Court

26 So. 921

124 Ala. 505

MCLENDON ET AL. v. STEPHENS ET AL.

Supreme Court of Alabama

November 23, 1899

Appeal from probate court, Jackson county, C. L. Cargile, Judge.

Proceedings on probate of a will; John H. McLendon and others proponents, against Henry D. Stephens and others, defendants. From a decree in favor of proponents, defendants appeal. Affirmed.

Tally &amp Proctor and W. H. Norwood, for appellants.

J. E Brown, for appellees.

SHARPE J.

This appeal is from a decree of the probate court which purports on its face to have been regularly entered on the 3d day of November, 1898, at the conclusion of a trial involving a contested application to probate a will, in which there was a verdict in favor of the proponents. The matter assigned for error appears only by what is called a "bill of exceptions," and consists of the supposed unauthorized action of the probate judge on the 25th day of November 1898, in then causing the decree to be written for the first time upon the records. The bill of exceptions recites, among other things, that "while the judge of said court was proceeding to enter said judgment on the records the above-named defendants who contested said will, by their attorneys, appeared in said court, and filed objections in writing with the judge of said court to the making and entering of record of the said judgment or decree nunc pro tunc probating said will"; and the grounds of the objections are set forth,-being in substance that there was no evidence of record, or quasi of record, to authorize the entering of the decree. It recites further "that no petition or motion was made in said cause to amend the record nunc pro tunc, but the same was a proceeding by Wm. B Bridges, the retiring probate judge, to write a minute entry of a trial begun and had before him to probate the will of said La Fayette Derrick, deceased, wherein a trial was had before him on said contest, beginning on the 21st day of October, 1898, and ending on the 2d day of November, 1898." It is also stated in the bill of exceptions that "the court overruled the said objections of the defendants hereinabove set out at length, and allowed the making and entering of record on the said 25th day of November, 1898, of the said judgment or decree nunc pro tunc; and to said decision, ruling, and judgment of the court the said defendants, by their attorneys, jointly and severally excepted in writing at the hearing of said...