70 So. 678 | Ala. | 1915
Appellant is administrator of the estate of Jorgan Jensen, deceased. Several years after appellant was appointed such administrator by the probate court of Baldwin' county, appellee and others, claiming to be the heirs and distributees of appellant’s intestate, appeared and sought to have settlements of the estate, and to resist charges for compensation made or filed by the administrator. The administrator denied or disputed that appellee was an heir or distributee, and claimed that intestate left no heirs or distributees, or that he was unable to find such heirs or distributees, and he thereafter instituted escheat proceedings under chapter 32, §§ 3918-3926 of the Code of 1907. After this matter had been pending for some time, and evidence was taken and a hearing had, the probate court decided that appellee and' others were entitled to the proceeds of the estate as heirs and distributees, and therefore dismissed the escheat proceedings. From the order dismissing the
No bill of exceptions was ever had of the proceedings in the probate court. An application was made in the circuit court, in the nature of a petition for mandamus, to require the probate judge to approve and sign a bill of exceptions; but this motion was not passed on by the circuit court or the judge thereof, and of course we cannot review a question which has not been passed on by the lower court. The bill of exceptions taken in the circuit court informs us that the only question passed upon by the circuit court was whether or not the appeal should be dismissed;' consequently this is the only ruling we can now review or pass upon, this being not an original proceeding here, but merely an appeal from a judgment of the lower court.
It conclusively appears that the only dispute or difference between the litigants is whether or not appellee is an heir or distributee of appellant’s intestate, or, in other words, whether the estate descended or escheated. The probate court, after a hearing, on the evidence decided that it descended. In the absence of a bill of exceptions showing the proceedings and the evidence on the hearing, the judgment of the probate court cannot be revised on appeal. This was held by this court long ago, in the case of Truett v. Woodham, 98 Ala. 605, 13 South. 519, where it was said by Stone, C: J., construing a similar statute in the Code of 1886: “Appeals in this class of cases are authorized by section 3641 of the Code to be taken from the pro
The case of Bradley v. Andress, 30 Ala. 80, was cited and relied upon by the Chief Justice, and it more than supports the holding. These statutes have been many times readopted, with this construction placed upon them, and we do not desire to depart from that construction.
This has been held to include all final orders, even those of the judge; in fact, the statute so reads. See citations to the above section of the Code. This order, whether by the court or by the judge, was final as to whether the estate descended or escheated, and hence would support an appeal.
The statutes as to escheats (sections 3918-3926) impose duties and responsibilities on the administrator, both as to hav
It appears, from what we have said above, that it is difficult to see how appellant can obtain any relief in the circuit court without a bill of exceptions showing the proceedings in the probate court; but as this record informs us that the trial court declined to pass upon appellant’s motion to establish such bill of exceptions, as well as upon his motion or application for mandamus, on the ground that it was unnecessary, the circuit court being of the opinion that the decree, judgment, or order in the probate court would support the appeal, we must reverse the judgment' of the circuit court, and remand the cause for further proceedings in line with what is said in this opinion and in the authorities cited.
Reversed and remanded.