Russell v. McPherson

Decision Date28 November 1918
Docket Number3 Div. 320
Citation202 Ala. 310,80 So. 392
PartiesRUSSELL et al. v. McPHERSON et al.
CourtAlabama Supreme Court

Appeal from Probate Court, Lowndes County; J.C. Wood, Judge.

In the matter of the estate of W.P. Russell, deceased. From a decree on the final settlement of the executors, H.H. McPherson and others, an appeal is prosecuted by W.P. Russell, as administrator de bonis non with the will annexed, and others. Affirmed.

Rushton Williams & Crenshaw, of Montgomery, and Joseph R. Bell, of Hayneville, for appellants.

Powell & Hamilton, of Greenville, Hill, Hill, Whiting & Thomas, of Montgomery, and R.L. Goldsmith, of Hayneville, for appellees.

PER CURIAM.

The appeal is from a decree of the probate court on the final settlement of the executors of the last will of W.P. Russell. One of the executors H.H. McPherson resigned, and the settlement was had with the administrator de bonis non with the will annexed, and the legatees, devisees, and other interested parties. The appeal is prosecuted by W.P. Russell, as administrator de bonis non with the will annexed, the legatees, devisees, etc.

The main insistences as to errors to reverse go to the allowance by the court of certain credits to the executors; one as for an attorney's fee of $1,000 paid for the prosecution of the alleged murder of the testator; and others unnecessary to here specify.

We are unable to review the correctness of the decree as to the allowance of any one of these credits, or for the refusal to charge the executors with certain other items, because no exceptions were taken or reserved to the decree appealed from on this account, or on any other account.

No exceptions whatever were taken to the rulings or findings as to the decree appealed from, and, of course, no such questions were reserved for our consideration on this appeal. The record not only fails to affirmatively show that exceptions were reserved, but it affirmatively recites that none were so reserved. We quote the following from the bill of exceptions, so that there may be no mistake as to the recitals:

"No exceptions to said decree of the court entered as of date July 26, 1917, and to the rulings of the court on the contested items were reserved by the contestants on July 26 1917, or at any time prior to October 22, 1917, but on October 22, 1917, the said W.P. Russell, as administrator de bonis non with the will annexed, W.P. Russell, individually Mildred McKeithen and Miriam Russell, and the said guardian ad litem, separately, and severally filed exceptions which are in words and figures as follows."

The paper thus filed in court for the first time could not answer as exceptions, unless by consent of all parties, and we do not hold that consent of all parties would have given validity to the exceptions; but it is certain the pretended exceptions had no validity in the absence of the consent of all parties.

When this paper was filed, the decree had passed from the control of the trial court, and it could not then, without the consent of all parties, be changed to conform to the exceptions. The object and purpose of exceptions is to give the trial court an opportunity to correct the error into which it has fallen, and the appellate court reviews the ruling of the court in refusing to correct the error, after a timely exception to such ruling. Otherwise parties might invoke or consent to erroneous rulings and decrees or judgments, and then appeal therefrom and reverse the trial court as for rulings invoked or consented to by appellant. The record affirmatively shows that appellants had ample opportunity to except to the rulings or allowances of which they now complain. The court announced the ruling and allowances promptly when the trial was concluded, and the mere fact that the decree was not then written up affords no excuse for the delay or failure to except for two months. The exceptions could have been made within time for the court to have considered them, and have allowed or disallowed them. It was too late after the lapse of weeks and weeks, after the judgment and decree had passed beyond the control of the trial court. It would certainly have been reversible error for the trial court to have changed, or attempted to change the decree as requested by the exceptions at the time they were made, no matter whether properly or improperly allowed originally. That is, the court then had no power to change or modify the judgment or decree theretofore rendered.

It has long been the rule of this court not to revise the rulings or decisions of trial courts upon facts or findings of facts unless objection is made, and exceptions reserved at the time of the ruling or decision as to the finding, and this made to appear by bill of exceptions or otherwise. Smith v. King, 22 Ala. 558; Gordon v. McLeod, 20 Ala. 242. These cases are not in conflict with Gaillard v. Duke, 57 Ala. 619; Kirksey v. Kirksey, 41 Ala. 626; McDonald v. Jacobs, 85 Ala. 64, 4 So. 605. The expressions in those cases that, on appeal from probate courts, the...

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