100 So. 497 | Ala. | 1924
Lead Opinion
Appellee made a motion to dismiss the appeal on grounds, in substance: (1) That a discontinuance occurred in this court by reason of the failure to docket said cause therein by filing a certificate of appeal or transcript for a period of over two years after the appeal was taken; and (2) that the failure to file the transcript within 60 days after the signing of the bill of exceptions authorized this court to dismiss the appeal, unless good cause was shown why the transcript had not been filed.
It appears that there was jury and verdict on June 8, 1921, that the judgment thereon and that appealed from was rendered June 10, 1921 (Lewis v. Martin,
The statutes (Gen. Acts 1919, p. 85; Code 1907, §§ 2855, 2856) as to taking appeals and proceedings in this court were recently considered in Holmes v. Holmes,
There is a well-recognized distinction between judicial and ministerial duties. The probate judge was disqualified only to discharge or perform judicial duties, in the instant probate and contest thereof. It continued to be his duty, as the probate judge of the county, to perform all merely ministerial acts, such as keeping the records, making transcripts, certifying thereto, etc. Code 1907, §§ 4626, 5419, 5421, 5439; Hayes v. Collier,
The reasons for the rule do not apply to ministerial acts, and it would be useless, impracticable, and inconvenient to require a special probate judge to perform all the ministerial duties arising in the case in which he is appointed.
We have carefully examined the evidence in support of and against the motion, and are of opinion that there was no waiver or discontinuance of the appeal under the facts of this case. Moreover, the delay of appellee in making his motion to dismiss the *354
appeal is a waiver of the right to dismiss. If appellant could have gotten a certificate of appeal so could appellee, yet he did not do so until after a proper certificate of appeal and the transcript were both filed. The motion to dismiss the appeal should have been made without undue delay (Street v. Street,
The motion was to strike the bill of exceptions for the reason that it was presented to Special Judge Murphree at Gadsden, and that he at that place indorsed the fact of presentation and signed the same as the bill of exceptions, as the judge presiding at the trial as special probate judge. No other bill of exceptions was ever presented to or signed by him. The bill of exceptions was not established in this court or by a justice thereof, as provided by law when such presiding judge has not signed the same, etc. Code, §§ 3021, 3022; Meade v. Meade,
Where it is not sought to contradict the recitals of record, but the effort is only to show that a bill of exceptions was never properly signed so as to become a part of the record, it has been uniformly held that this fact may be shown by parol; that a purported bill of exceptions is not authentic, or was not signed by the official within his territorial jurisdiction. Mauney v. Electric Construction Co.,
The territorial limits of the jurisdiction of a probate judge being coextensive with the boundaries of such county, such judge must perform all judicial acts within that county, or else such acts are absolutely void. Qualls v. Qualls,
The Rainey-Ridgeway Case, above cited, is similar to the case at bar. In that case by agreement a will contest had been heard by a special judge of probate in the probate court of Tallapoosa county. This special judge of probate made an order granting an extension of time for the signing of the bill of exceptions. This order being made or entered beyond the limits of Tallapoosa county, this court held that the bill of exceptions be stricken, for the reason that the judicial power and function of a probate judge is confined within the territorial limits of the county in which he is elected. The order granting the extension of time for signing the bill of exceptions was, under the law, within his discretion, and being an official act involving judicial discretion, was a judicial act; and having been made without the territorial limits of the official jurisdiction of such official, was a nullity. It follows that the instant bill of exceptions be stricken because it never became a part of the record in the case — and the motion to that end is granted.
The matters presented by the appeal, and seeking to review matters and rulings shown by the record proper, are assignments of error challenging ruling in sustaining demurrer to the ground of contest contained in plea No. 7. The record shows that (on January 3, 1921) contestants filed grounds of contest numbered one to seven, inclusive, and that the special judge sustained demurrer to the last ground. It was in the following language:
"7. Contestants specially plead further that said alleged will should not be probated for that subsequent to the execution of said alleged will the said Gaston Luther did revoke said alleged will by a writing described by the testator and attested by two witnesses in whose presence the said Gaston Luther signed said writing and who in the presence of said Gaston Luther and in the presence of each other signed said writing as attesting witnesses."
The record further shows that on the same day contestants filed grounds of contest numbered *355 6 and 7. The latter was in the following words:
"Contestants specially plead further why said alleged will and testament propounded by said Morrison Luther should not be probated, that subsequent to the alleged execution of said alleged will and testament, said Gaston C. Luther did execute a writing in the presence of two witnesses, that said Gaston C. Luther did sign said writing in the presence of said witnesses, and that said witnesses did sign their names as witnesses to said writing in the presence of said Gaston C. Luther and in the presence of each other and in said writing, a true copy of which is hereto attached as a part hereof, the said Gaston C. Luther made the following declaration. 'That said will (meaning the will offered for probate) is void as a new will has been made since that time.' And that said declaration was made by said Gaston C. Luther with the intention on his part of revoking said alleged will propounded by said Morrison Luther for probate.
"A. E. Hawkins,
"Street Bradford,
"Attys. for contestant.
"Filed Jan. 3, 1921. W. W. Haralson Special Judge of Probate Before me, C. D. King, a notary public, personally comes G. C. Luther, who being first duly sworn deposes and says that during the month of June or July, 1920, he made a will which has been lost, destroyed or stolen. Said will was witnessed by Jim Israel, R. Y. Williams and Dr. Lee Weathington; that said will is void, as new will has been made since that time.
his
"G. C. X Luther.
mark
"Witness: C. D. King. C. T. Justice. J. Thos. Gaines, M. D.
"Subscribed and sworn to before me this 4th day of September, 1920.
"C. D. King, Notary Public."
The transcript contains that ruling, as follows:
"* * * Contestants confess said demurrers to said pleas No. 4 and No. 5. It is therefore ordered and adjudged that said demurrers be, and the same are hereby sustained, whereupon contestants file grounds of contest No. 6 and No. 7, and proponents file demurrers to said grounds No. 6 and No. 7. Upon consideration of said demurrers it is ordered and adjudged by the court that the demurrer to the grounds of contest No. 6 be and the same are hereby overruled, and that the demurrers to the grounds No. 7 of the contest be and the same are hereby sustained; whereupon the proponent files his replications to said grounds of contest Nos. 1 to 9, said replications being filed this day."
The replications described in the judgment entry as being filed "this day" were dated January 3, 1921. The record proper makes plain that the demurrer in question was directed to ground No. 7, and that the demurrer was sustained. The record does not show, however, what grounds of demurrer were assigned to said ground No. 7. In such condition of the record as to grounds of demurrer directed to said ground No. 7 and sustained, we are required to search that pleading for a proper ground that might sustain the ruling, if such ground exist. Liverpool London Globe Ins. Co. v. McCree,
"Except in the cases provided in the preceding article, a will in writing can only be revoked by burning, tearing, canceling, or obliterating the same, with the intention of revoking it, by the testator himself, or by some person in his presence, and by his direction, or by some other will in writing, or some other writing subscribed by the testator, and attested as prescribed in the first section of this article; and when any will is burned, torn, canceled, or obliterated by any other person than the testator, his direction and consent thereto, and the fact of such burning, canceling, tearing, or obliteration, must be proved by at least two witnesses."
See Bruce v. Sierra,
The burden of showing revocation as provided by law was on contestants, and was sought to be set up by the instant pleading to which demurrer was sustained. Hodge v. Joy,
The decree of the probate court is reversed, and the cause is remanded, for sustaining demurrer to ground No. 7. Bruce v. *356
Sierra,
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.
Addendum
In the absence of the recited second will, we cannot know whether in fact the subsequent will was executed, or, if so, whether it was duly executed. To hold that the statute was not complied with in the instant case, without the production of the subsequent will, would put it in the power of a third person to defeat the formal declared intent of revocation of the "lost, destroyed or stolen will." It is sufficient that the statutory requirements of revocation were accomplished by Mr. Luther during life, whatever may have been his reasons therefor. And after his death the doctrine of dependent relative revocation cannot set up for him a will he had revoked pursuant to the statute, and defeat his revocation because of the failure of third persons to produce the subsequent will in question.
The application is overruled.
All the Justices concur.
