Holmes v. Holmes

97 So. 628 | Ala. | 1923

The submission is on motion to dismiss the appeal, and on the merits. The ground of the motion is that the appeal was not taken within 30 days after the order or decree sought to be reviewed; that said appeal was not taken or perfected within the time required by law. An inspection of the record discloses that the trial was had, and the decree or order entered November 24, 1922. The prayer for appeal was filed January 5, 1923; bond filed and approved as of that date, and the citation of appeal issued May 1, 1923. Such are the only efforts disclosed by the record to perfect the appeal, which is too late. Ouchita National Bank v. Fulton, 195 Ala. 34, 70 So. 722; McGowan v. Milner, 195 Ala. 44, 70 So. 175. An appeal must be prosecuted within the terms of the statute (Liverpool London Globe Ins. Co. v. Lowe, 208 Ala. 12, 93 So. 765; Mitchell v. Duncan, 94 Ala. 192, 10 So. 331; Code 1907, § 2855 et seq.), and, if not so perfected, is subject to be dismissed on proper motion. The general provisions of Acts 1915, p. 711, and Acts 1919, p. 84, held not to change special provisions of the statute. Pepper v. Horn, 197 Ala. 395,73 So. 46; Bowe v. Pierson, 206 Ala. 250, 89 So. 711; Minge v. Smith, 206 Ala. 330, 89 So. 473.

Was the order or judgment subject to section 2855 of the Code, as amended, or to section 2856 (2), as to the time of taking an appeal? The case of Mitchell v. Duncan, 94 Ala. 192,10 So. 331, was where the order determined between rival claimants the right to administer an estate; the question here presented is different, being which of the probate courts (Clay or Coosa county) shall administer the estate of decedent. On a rehearing we are of opinion that the judgment or decree against petitioner (appellant) was final, and governed by section 2855 of the Code as amended. The bill of exceptions being duly established and the appeal taken according to law, the several motions of appellee are overruled.

The issues presented by the proceeding were not such as prevented the parties from giving evidence, tending to show the existence of the estate of decedent and the situs thereof. The provisions of section 4007 of the Code had no application to the evidence offered by petitioner and denied by the court. McCann v. Ellis, 172 Ala. 60, 55 So. 303. Reversible error intervened in excluding the evidence of D.C. Holmes to the effect that he bought "the things of his father" in Clay county — the bedstead, trunk, art square, wardrobe, blacksmith tools, etc. — that came to the father "in the division of my mother's (wife of decedent) things," and which the decedent brought to the witness' "house." So the check given by witness to decedent in the purchase of such personalty was competent evidence. It was reversible error to decline to permit the witness to answer the question, "Did you give this check signed by you for the sum of $30 to your father, which is marked paid, for the wardrobe, art square, blacksmith tools and the other things he brought to your house, and which Mr. Riddle asked you about as belonging to your father?" The bill of exceptions recites of this ruling:

"The defendant objected on the same grounds as before and the court sustained the objections, and petitioner reserved then and there an exception. Counsel for the complainant then stated to the court that he expected the answer to show that he did. Counsel then asked the witness this question for the petitioner: 'Was this check delivered to and accepted by your father in full settlement for those things which we have asked you about?' Defendant objected on the same grounds, and the court sustained the objections, and plaintiff reserved an exception. Here counsel for petitioner offered the check, identified by witness D.C. Holmes, in evidence, and the defendant objected on the same grounds, and the court sustained the objections, and plaintiff reserved then and there an exception."

The fact that certain debtors of decedent resided in Clay county was beside the issue. It was error to permit in evidence, over petitioner's objection, the question and answer, "Did any one in Clay county owe your father anything?" "Yes, Ben Harris, J. V. Kelley, and W. S. Machen owed him." So of the failure to exclude this evidence on motion duly made by petitioner, and to which action of the court exception was duly reserved.

The judgment or decree is reversed, and the cause is remanded.

Reversed and remanded.

ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.