32 Ala. 149 | Ala. | 1858
We do not entertain a doubt of the correctness of the decision of the circuit court, in denying to appellant the right to a trial de novo in that court. The sections of the Code which give the right of appeal, first from the probate to the circuit court, and afterwards from the circuit to the supreme court, are, in substance, identical. We know of no principle of construction which will authorize us to discriminate between the effect of these several appeals. — Code, §§ 334, 335, et seq.
Section 337, which relates to each of these classes of appeal, authorizes “the clerk of the appellate court, if the decision is against the appellant, [to] issue execution for the costs of the appeal, agaiust such securities.” The phrase, “ costs of the appeal,” is very inappropriate to convey the idea of costs of a trial de novo. They express with precision the meaning of the legislature, if the appeal to the circuit court be triable on the record alone.
Another reason: Section 317 of the Code provides, that when the judge of probate “ is incapacitated, under section 560 of this code, from trying such contests,” the trial must be transferred to the circuit court. Sections 318 and 319 of the Code direct how such trial is to be conducted, and, among other things, authorize the circuit court, “for cause, to continue such contest to a day after the termination of the circuit., or to the next succeeding term.” Now, the language of these sections clearly makes it the duty of the circuit court, in cases where the judge of probate is incapacitated to try the case, to hear the testimony, and try the facts; and it may even adjourn the trial to a day in vacation. Section 834, and those following, contain no such provisions, nor can any such be implied from them.
The literal import of the language above copied will exclude all evidence as to the legality of votes given or rejected, unless notice be given. It does not discriminate between votes given or offered for either the one or the other candidate. The language is general — “ no testimony must be received.” The contingency, on which this prohibition is to be inoperative, is, that the party contesting has given notice to the adverse party. A literal construction of this language would require, that the party contesting shall give notice to his adversary of the votes, as to the legality of which that adversary is to be permitted to offer testimony. A statement of this proposition is its refutation. We think we carry out both the spirit of the law, and the iutention of the legislature, by holding that each
The record does not inform us of the final ruling of the probate court, except in a few particulars, and in the general result. We deem it unimportant to decide each and every point that was raised on the admissibility of evidence. We will lay down a few rules which we think will be sufficient to direct the probate judge on another trial.
The testimony found in this record, which relates to the vote offered by Meadows, is so unsatisfactory and conflicting, that we are unable to say there was error in rejecting it. It is left in extreme doubt, for which of the candidates he would have voted, if he had been allowed the privilege.
The judgment of the circuit court, affirming the decision of the probate judge, is reversed; and this court, proceeding to render such judgment as the circuit court should have rendered, doth hereby order, adjudge, and decree, that the judgment of the probate court is reversed, and the cause remanded to the probate judge of Coosa, to be proceeded in according to the principles of this opinion. — Code, § 3034.
Let the costs of this appeal, and of the appeal to the circuit court, be paid by the appellee. The clerk of this court will certify this reversal'to the circuit court, and to the probate judge of Coosa.