Shamlin v. Hall
| Decision Date | 13 June 1899 |
| Citation | 123 Ala. 541,26 So. 285 |
| Parties | SHAMLIN v. HALL ET AL. |
| Court | Alabama Supreme Court |
Appeal from circuit court, Franklin county; Ed. B. Alman, Judge.
Action of ejectment by F. M. Hall and others against Mary Shamlin. There was a judgment for plaintiffs, and defendant appeals. Affirmed.
The facts of the case are sufficiently stated in the opinion. Upon the plaintiffs offering to prove that their ancestor John Burleson, died on June 15, 1883, the defendant objected and moved the court to exclude the testimony, on the ground that said testimony is a collateral attack on the decree of the probate court setting aside said lands to Kizzie Burleson, the defendant's granddaughter, said decree reciting the fact that said John Burleson died June 15, 1887 and on the further ground that plaintiffs cannot collaterally impeach any material fact settled and adjudicated in said decree. The court overruled this objection and motion, and to this ruling the defendant duly excepted. The deed from Kizzie Burleson to the defendant was dated January 28, 1896. The court, of its own motion, instructed the jury "that if they believe from the evidence that John Burleson died prior to the 12th day of February, 1885, they must find for the plaintiffs a two-thirds undivided interest in the lands sued for." The defendant duly excepted to this charge of the court, and also excepted to the court's refusal to give the following charge requested by her: "If they believe from the evidence that John Burleson died on the 15th of June, 1883, they must find for the defendant." There were verdict and judgment for the plaintiffs. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.
James W. Bolton and W. H. Key, for appellant.
Alman & Bullock, for appellees.
This is a statutory action of ejectment, brought by appellees against appellant. The appellees, plaintiffs in the court below claimed as heirs at law of John Burleson, deceased, the common ancestor of plaintiffs and defendant, and sued to recover an undivided interest in the lands described in the complaint. The defendant relied upon a deed executed to her by Kizzie Burleson, widow of John Burleson. The undisputed facts as shown by the bill of exceptions are that John Burleson was the common ancestor, and died in possession of the land in question; that the same was his homestead, and in area less than 160 acres, and in value less than $2,000, and was all the land he owned; that his personal property was less than $1,000 in value; that he left no debts, and no administration was ever had on his estate; he left surviving him a widow, Kizzie Burleson, but no minor children; that the widow continuously occupied said homestead to the date of her death, which occurred in December, 1897. The widow, Kizzie Burleson, filed her petition with the probate judge of Franklin county on the 27th day of November, 1895, to have said homestead set apart to her, in which said petition it is averred, among other things, that the said John Burleson died June 15, 1887. The proceedings had on said petition were in all respects regular as provided by the statute, and on the 18th January, 1896, the probate judge of said county made an order setting apart said homestead to said widow. The only dispute in the evidence was as to the date of the death of John Burleson. The evidence of plaintiffs tended to show that he died on the 15th June, 1883, while that of the defendant tended to show that he died in 1887. It was averred in the application filed by the widow in the proceeding to set apart the homestead that the said John Burleson died on the 15th June, 1887, and it is contended by the appellant that the court below erred in permitting evidence by the plaintiffs tending to show that said Burleson died on the 15th day of June, 1883, for the reason that it was a collateral attack on the judgment of the...
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Cobbs v. Norville, 1 Div. 758.
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