Thomas v. Thomas

• Decision Date: 03 October 1921
• Docket Number: 137
• Citation: 233 S.W. 808,150 Ark. 43
• Parties: THOMAS v. THOMAS
• Court: Arkansas Supreme Court

233 S.W. 808

150 Ark. 43

THOMAS v. THOMAS

No. 137

Supreme Court of Arkansas

October 3, 1921

Appeal from Ashley Circuit Court; Turner Butler, Judge; affirmed.

STATEMENT OF FACTS.

This suit originated in the probate court of Ashley County Arkansas.

Alsie Thomas filed a petition in that court asking to be appointed administratrix of the estate of James Thomas, deceased, and for dower in his estate. She alleged that James Thomas died in Ashley County, Arkansas, on the 9th of January, 1920 owning a valuable farm of 160 acres and considerable personal property; that she was the lawful widow of James Thomas and resided with him on his farm at the time of his death, and that they owned certain personal property in common.

James Thomas had no children, and his brothers and sisters became parties to the proceeding, and they denied that Alsie Thomas had ever been legally married to James Thomas, and that she had any interest in his estate as widow or otherwise.

The probate court found the issues against Alsie Thomas, and rendered judgment dismissing her petition. The case was tried de novo in the circuit court, where the issues were found in favor of Alsie Thomas. The case was tried before the circuit court sitting as a jury, and the court found that Alsie Thomas had legally married James Thomas, and was entitled to dower in his estate. Letters of administration were granted to her, and she was given a share in certain personal property in addition to her dower.

Judgment was rendered in accordance with the findings of the court and to reverse that judgment this appeal has been prosecuted.

Judgment affirmed.

John Baxter, G. P. George and Compere & Compere, for appellants.

No order of appeal was made by the probate court, and this appeal should be dismissed. The order "examined and approved" is no order of appeal, and no presumption can be indulged in its favor. 65 Ark. 419. The filing of an affidavit is not a compliance with statute requiring an order of appeal. 181 S.W. 287; 126 Ark. 211.

The question of jurisdiction can be raised for the first time in the Supreme Court. 170 S.W. 221.

The circuit court on appeal was without jurisdiction to try the title to personal property, which it adjudged to appellee, as the probate court had no such jurisdiction 116 Ark. 350. There is no presumption that the probate court had jurisdiction. 185 S.W. 796. The pleadings did not put into issue the title to the personal property. The decree was without the issue, 87 Ark. 210, and, the title to the personal property not being involved, any judgment relating thereto is void. 76 Ark. 152; 90 Ark. 196.

The law presumes marriage and not concubinage but such presumption is rebuttable. 18 R. C. L. 424-425 433; 26 Cy. 877, 886, 889.

The weight of the evidence shows that there was no legal marriage, and appellee is not entitled to dower. 82 Ark. 76; 88 Ark. 196.

The general and special findings are inconsistent, and the former controls the latter. C. & M. Dig. § 1304. The same is true as to findings of fact by trial judge or jury. 84 Ark. 359.

U. J. Cone, for appellee.

The affidavit for appeal required by Sec. 2258 C. & M. Digest, was properly made, and the "approval" thereon of the judge could only mean one thing--that which was asked for--an appeal granted. 29 Cyc. 1514 I; 4 C. J. 1462. The appeal in the instant case meets the requirements in 93 Ark. 263 and is not contrary to 95 Ark. 148; 104 Ark. 113; 138 Ark. 131, and 140 Ark. 331.

The marriage is established by competent evidence. 26 Cyc. 886. There is always a presumption of a valid marriage, and the proof of such in this case is stronger than that in 82 Ark. 76. See also 1 Bishop, Marriage & Divorce, § 77. General repute in the community is admissible on the question. 26 Cyc. 872, 888; 32 Ark. 205; 15 L. R. A. (N. S.) 190; 28 Ark. 19; 131 Ark. 221; 15 Ark. 555 at p. 605. The burden of proving the invalidity, or the fact of no marriage at all, rests upon the attacking party. 121 Ark. 361; 34 Ark. 518; 67 Ark. 281.

Without the aid of Attorney Compere's testimony the testimony of Mrs. Herring was incompetent. His testimony was incompetent and against the "communications rule." 40 Cyc. 2366.

John Baxter, G. P. George, Jos. F. Wallace, Compere & Compere, for appellants, in reply.

The cases cited by appellee to sustain his contention that the appeal was properly taken do not do so.

The testimony of Thos. Compere, attorney, was competent. 220 S.W. 677; 9 A. L. R. 1076; 183 Ky. 679; 211 S.W. 441; 5 A. L. R. 972.

OPINION

HART, J., (after stating the facts).

It is first earnestly insisted by counsel for appellants that the circuit court was without jurisdiction to try the case, and for that reason the appeal should be dismissed. No motion was filed or presented in the circuit court to dismiss the appeal from the probate court for want of jurisdiction, and the question of jurisdiction in the circuit court to try the case is raised here for the first time.

The record of the proceedings in the cause in the probate court is contained in the transcript. It shows that the judgment of the probate court dismissing the petition of Alsie Thomas was entered of record on the 28th day of February, 1920, and that this was a day of the regular January, 1920, term of the Ashley Probate Court. The probate record also shows that C. D. Oslin was the judge of the probate court who rendered the judgment. In addition we copy from the record the following:

"AFFIDAVIT FOR APPEAL.

"In re Estate of James Thomas. Petition for Assignment of Dower.

"Alsie Thomas respectfully prays an appeal from the judgment of the probate court herein to the circuit court of Ashley County, and says that said appeal is taken because she verily believes she is aggrieved, and is not taken for the purpose of vexation or delay.

"Alsie Thomas.

"Subscribed and sworn to before me this 28th day of February, 1920.

"U. J. Cone, Notary Public.

"Filed February 28, 1920.

"George T. Gardner, Clerk.

"Examined and approved this February 28, 1920.

"C. D. Oslin, Judge."

It is claimed by counsel for appellants that the record of the probate court does not show that an appeal to the circuit court was granted, and that the circuit court acquired no jurisdiction of the case. Counsel for appellants invoke the general rule announced in Matthews v. Lane, 65 Ark. 419, 46 S.W. 946; Walker v. Noll, 92 Ark. 148, 122 S.W. 488, and other decisions of this court to the effect that it is necessary, in order to invest the circuit court with jurisdiction, that it appear from the record that the affidavit and prayer for appeal were presented to the probate court, and that the appeal was granted. In certain cases the statute requires that the county court shall grant the appeal to the circuit court, and under such statutes it has also been held that the granting of the appeal by the county court is a prerequisite to the exercise of the jurisdiction by the circuit court. Hence counsel places particular reliance upon the decision in Drainage District No. 1 v. Rolfe, 110 Ark. 374, 161 S.W. 1034. In that case it was held that the circuit court was without jurisdiction, and that the judgment on appeal from the county court was void, where the record did not disclose in the matter of a formation of the drainage district that any of the steps were taken perfecting an appeal from the county to the circuit court. The court further held that, inasmuch as the record showed that the circuit court was without jurisdiction of the cause, the defect of jurisdiction was not waived by a failure to move the court to dismiss the appeal.

Every decision must be construed with reference to the facts of the particular case. In that case the record of the Supreme Court contained a transcript of the proceedings in the county court, and did not show anything about a remonstrance against the formation of the district being filed in the county court; nor did it show an appeal from the county court, if any was granted; nor any of the steps necessary in taking an appeal. The statute required the county court to grant the appeal, and, having prescribed the method for taking an appeal, such method must be substantially followed in order to give the circuit court jurisdiction. In that case there was an entire absence, in the record brought to the Supreme Court, of any showing that the county court had granted the appeal, or that the parties interested had taken any of the necessary steps toward taking an appeal. Here the facts are essentially different. The record shows that an affidavit for appeal substantially in the language of the statute was filed and sworn to on the day that the judgment of the probate court was rendered. Attached to this affidavit is the following: "Examined and approved this February 28, 1920. C. D. Oslin, Judge." The record of the probate court shows that February 28, 1920, was a day of the regular January, 1920, term of the Ashley Probate Court, and that it was the day upon which the judgment in question was rendered and entered of record. The probate record also shows that C. D. Oslin was the judge who rendered the judgment. The notation made by him on the petition is sufficient to show that the prayer for appeal was granted. Alsie Thomas had complied with the statute with regard to taking the appeal, and was entitled to have it granted as a matter of right. The record shows that the petition was filed while the court was in session, and the fact that the presiding judge marked on the petition the words, "Examined and approved," and signed the same as judge, is evidence that he intended to act upon the petition and to grant the appeal.

It is true that the order was not entered of record, but that was not necessary in...