Miller v. Thompson

• Citation: 96 So. 481,209 Ala. 469
• Decision Date: 05 April 1923
• Docket Number: 7 Div. 363.
• Parties: MILLER ET AL. v. THOMPSON ET AL.
• Court: Supreme Court of Alabama

96 So. 481

209 Ala. 469

MILLER ET AL. v. THOMPSON ET AL.

7 Div. 363.

Supreme Court of Alabama

April 5, 1923

Rehearing Denied May 17, 1923.

Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.

Bill of John Henry Thompson and another against R. L. Miller and others. Decree for complainants, and respondents appeal. Affirmed.

Goodhue & Goodhue, of Gadsden, for appellants.

Motley & Motley, of Gadsden, for appellees.

SAYRE J.

A partial statement of the contents of the bill in this cause may be found in the report of a former appeal. Miller v Thompson, 205 Ala. 671, 89 So. 51. But, in view of two contentions stated in the brief for appellants, it may be well to state further that the bill and answer alike aver, in substance, that James Miller died seized and possessed of the land in controversy-meaning, as we think, that he was in possession with title-and it was hence not necessary to adduce proof of the fact. Further, the amendment by which Cora Motley came into the cause as a party complainant with original complainant Thompson avers that Thompson, having acquired the interests of all the heirs of James Miller deceased, in the land, executed a conveyance of a one-half interest to his cocomplainant Cora Motley. But the conveyance exhibited and proved is so phrased as, in facie, to give color to the contention that complainant Thompson parted with his entire interest. Vandegrift v. Shortridge, 181 Ala. 276, 61 So. 897. Upon this it is contended that, since both complainants are not entitled to relief, neither separately can have a decree, citing Lovelace v Hutchinson, 106 Ala. 417, 17 So. 623. But that law has been changed so that now relief may be decreed in favor of any one or more complainants, and denying relief to any one or more. Code 1907, § 3212. Conceding, without deciding, the effect of the conveyance from Thompson to Cora Motley to be as contended, no interest of defendants is adversely affected by the frame of the bill in this particular, and at least Thompson is a proper party. Miller v. Thompson, supra; Broughton v. Mitchell, 64 Ala. 210.

The real question in this cause arises out of the contention as to the operation and effect of proceedings, and a decree had in the probate court, in the matter of the petition of the widow of James Miller, in which she sought to have the land in controversy set aside to her as homestead. The amended bill sets forth the title of both complainants and defendants. It exhibits in detail the proceedings and decree purporting to set off and allot to Millie Miller, the widow of James Miller, deceased, as her homestead under the laws of this state, the land in controversy, and avers that afterwards she executed the conveyance under and by virtue of which defendants claim to own the fee. Complainants claim that the proceedings and decree are void and of none effect; that the widow's deed conveyed only her life estate, assigning to it only such effect as it would have had in the absence of any proceeding to set apart homestead; that the title in remainder is in them as the heirs and grantees of the heirs of the deceased owner-and file their bill to clear up doubts and disputes concerning their said title. Defendants by their answer deraign title through conveyance from the widow-to this extent confessing the bill-contending however that the widow's conveyance vested the entire fee in them, thereby asserting the validity of the proceedings in the probate court and denying complainants' title in remainder.

Whether the attack upon the record and decree of the probate court is direct or collateral is a question discussed in the briefs. We incline to the view that the attack is collateral, for "any proceeding provided by law for the purpose of avoiding or correcting a judgment is a direct attack, which will be successful upon showing error; while an attempt to do the same thing in any other proceeding is a collateral attack, which will be successful only upon showing a want of power." Van Fleet on Collateral Attack, § 3, where a suit to quiet title is enumerated as one of a number of familiar instances of collateral attack.

It is the settled law of this state that the court of probate when it proceeds to set apart and allot homestead exercises a special and limited jurisdiction, which only attaches when a petition is filed containing the necessary allegations. Cotton v. Holloway, 96 Ala. 544, 12 So. 172. Its jurisdiction must appear upon the face of its record, and nothing is intended to be within its jurisdiction but that which is so expressly alleged. Commissioners v. Thompson, 18 Ala. 694; Field v. Goldsby, 28 Ala. 225, 65 Am. Dec. 341; Brooks v. Johns, 119 Ala. 417, 24 So. 345; Chamblee v. Cole, 128 Ala. 649, 30 So. 630; Goodwin v. Smith, 86 Ala. 102, 5 So. 587, 11 Am. St. Rep. 21. The general rule is that if the court is of inferior or limited jurisdiction, silence of the record on a jurisdictional point is fatal; but, if the record shows jurisdiction has once attached, subsequent irregularities will not render the proceedings void. Satcher v. Satcher, 41 Ala. 26, 91 Am. Dec. 498; Pettus v. McClannahan, 52 Ala. 59.

The petition, which set on foot the proceedings in the court of probate and gave that court what jurisdiction it had, has been lost, nor is any...