White v. Hilbish, 6 Div. 461

• Decision Date: 18 July 1968
• Docket Number: 6 Div. 461
• Citation: White v. Hilbish, 213 So.2d 230, 282 Ala. 498 (Ala. 1968)
• Parties: Marcus B. WHITE, Administrator v. Charles K. HILBISH, d/b/a Tuscaloosa Plumbing and Heating Company.
• Court: Alabama Supreme Court

Page 230

213 So.2d 230

282 Ala. 498

Marcus B. WHITE, Administrator v. Charles K. HILBISH, d/b/a Tuscaloosa Plumbing and Heating Company.

6 Div. 461.

Supreme Court of Alabama.

July 18, 1968.

Witcher & Young, Birmingham, and Williams & McDuff, Tuscaloosa, for appellant.

McDuffie & Holcombe, Tuscaloosa, for appellee.

HARWOOD, Justice.

The proceedings below had their origin in the contest of a claim filed with the Probate Court of Tuscaloosa County by Charles K. Hilbish, doing business as Tuscaloosa Plumbing and Heating Company, against the estate of L. B. White, deceased, Marcus B. White being administrator of said estate.

From this modest situation what at first appeared to be only a jurisprudential hillock has by motions, counter motions, and procedural steps, been raised into a jurisprudential Mount Everest necessitating a record of some 775 pages.

Letters of administration on the estate of L. B. White were granted to Marcus B. White on 1 February 1965, and he thereupon filed his bond as such administrator in the amount of $150,000 on 23 November 1965.

Charles K. Hilbish doing business as Tuscaloosa Plumbing and Heating Company, filed a claim against the White estate in the amount of $18,526.96. Other claims were also filed but it appears that several of these claims were adjusted or were not contested in the Probate Court.

On 22 November 1966, the administrator filed a contest of the Hilbish claim and requested a hearing thereon. After a hearing of the contest of the Hilbish claim, the Probate Court on 17 March 1966, entered an order finding that 'Charles K. Hilbish, doing business as Tuscaloosa Plumbing and Heating Company, has a valid existing claim' in the amount of $16,331.21, and 'Ordered, Adjudged, and Deceed * * * that the said Charles K. Hilbish, doing business as Tuscaloosa Plumbing and Heating Company have and recover the sum of $16,331.21 against the estate of L. B. White, deceased, and the said Marcus B. White, administrator of the estate of L. B. White, deceased, is hereby ordered and directed from the assets of the estate of L. B. White, deceased, to pay to the said Charles K. Hilbish, doing business as Tuscaloosa Plumbing and Heating Company, the sum of $16,331.21 for full satisfaction of said claim.'

On 1 April 1966, the administrator filed notice of appeal to the Circuit Court of Tuscaloosa County from the judgment of the Probate Court on the Hilbish claim, and demanded a jury trial. No bond for costs was filed with the notice of appeal.

On 18 May 1966, the administrator filed a motion to vacate and set aside the judgment and decree on the Hilbish claim rendered on 17 March 1966. Five days later Hilbish filed a motion to strike the appellant's motion to vacate the decree on the Hilbish claim.

On 30 May 1966, the Probate Court denied the motion to set aside its judgment and decree allowing the Hilbish claim, and granted Hilbish's motion to strike the administrator's motion.

On 28 June 1966, the administrator gave notice of appeal from the decree overruling his motion to vacate and set aside the order allowing the Hilbish claim and on the same day filed a bond for costs of appeal to the Circuit Court. We note here that the bond filed on 28 June 1966, appears to be the only appeal bond filed though it is shown twice in the record. It is for Case #1618, Probate Court. This case relates to the contest of the Hilbish claim, and the motion to set aside the judgment of the Probate Court allowing the Hilbish claim bears the same number. Regardless, no appeal bond was filed until 28 June 1966.

On 7 July 1966, Hon. W. C. Warren, one of the judges of the Circuit Court for the Sixth Judicial Circuit entered an order removing the administration of the White estate to the Circuit Court in Equity.

On 17 August 1966, Hilbish filed a petition in the Circuit Court for an accounting and annual settlement by the administrator and this petition was granted on that day.

Thereafter the administrator on 20 October 1966, filed a report of his actions as administrator, and the court set a hearing on said report and accounting for 29 November 1966. In the meantime Hilbish sought an order removing White as administrator.

On 29 November 1966, the hearing was had on the report and accounting of the administrator and the next day the Circuit Court entered a decree to the effect that the Hilbish claim was a valid claim and found it to be in the amount of $16,331.21, the same amount as fixed by the Probate Court.

On that same day the administrator filed a motion to set aside the Chancellor's decree of 29 November 1966, alleging that the court had without a hearing, and without any evidence being presented, summarily held the Hilbish claim to be a valid claim. It was further alleged in the motion that the issue of the Hilbish claim was not properly before the court since the issue of its validity was pending on appeal on the law side of the Circuit Court. In response to this motion, the court set a hearing on it for 24 January 1967.

The administrator then filed a motion that Judge Nicol recuse himself because he had declared his position to be that he would not disturb the finding of the Probate Court as to the Hilbish claim. This motion was overruled the day it was filed.

At the hearing on 24 January 1967, extensive evidence was presented as to the Hilbish claim, and this matter was tried de novo. Other matters were also presented at this hearing.

On 2 March 1967, the court issued its decree on the accounting of the administrator and the validity of the Hilbish claim, and found the claim to be $16,331.21, the same amount as found by the Probate Court. As evidenced by the certificate of appeal, it is from this decree that an appeal was had or attempted.

The court also found that the estate of L. B. White was solvent at the time of L. B. White's death, but that Marcus B. White, the administrator, had not administered the estate according to law, but illegally used assets of the estate to his own use, and had not rendered a proper accounting. Notice of appeal was timely filed from this decree and order, and a supersedeas bond for $50,000 was filed. There then followed a number of proceedings relative to supersedeas bonds but these proceedings are not questioned on this appeal.

The above recital does not include various other motions filed in the court below, but we have included in such recital those motions which we deem pertinent to this review, and perhaps some matters only slightly pertinent.

As stated by counsel for appellant in brief:

'Appellant essentially seeks by this appeal to overturn a decision by the court below which allowed a $16,331.21 claim for extra work under a written contract which contained a provision that extra work would be paid for only upon written authorization, * * *' which appellant asserts was not obtained.

Reviews by an appellate court in civil cases are limited by the posture of an appeal as presented by the pleadings, procedure, evidence, assignments of error, and points adequately specified and argued in brief of counsel.

In the present case the order of the Probate Court allowing the Hilbish claim was entered on 17 March 1966, after a hearing on the contest of said claim and appeal from this order to the Circuit Court was attempted. This appeal was abortive because no appeal bond was filed within 30 days of the entry of the order appealed from. This defect went to the jurisdiction of the Circuit Court to entertain the appeal. See Wilkerson v. Hagan, 265 Ala. 515, 92 So.2d 901, holding to this effect with a full...