Ex parte Boynton

B. E. SAEEOLD, J. The petitioner, W. N. Boynton, alleges, that being the executor of the will of Alanson Saltmarsh, deceased, he was removed from his office by an order of the probate court, rendered on the 17th day of August, 1869, which tim e was not a day of any regular term to which said case was adjourned; that afterwards, on the 15th of September, 1869, he moved the said probate court to vacate and set aside the order removing him, whieh motion was heard and refused on the 10th day of November, 1869. Upon affidavit stating these facts, he applied for and obtained, in vacation, a certiorari to bring the proceedings in the cause directly into this court for revision, and a su [262] persedeas to suspend further action in the probate court until the final determination of this court in the matter, and he asks for such relief as is in the power of this court to render. The motion to dismiss is upon the ground, that the remedy of the applicant was either by appeal to this court, or by certiorari returnable to the circuit court. An appeal to this court from the order removing him, would have been an appropriate remedy for the petitioner, if the order had been irregular and simply erroneous. But the objection taken to it is, that it is void. An appeal from it, therefore, would probably, under late precedents of this court, have been dismissed at his costs. — Hays v. Cockrell, 41 Ala. 75; Garrison v. Burden, 40 Ala. 513. The action now sought of this court is a revision of the proceedings of the probate court. For this purpose, the proviso to the second section of article 6 of the constitution gives authority for the issuance of the necessary writ. It is said that application must be first made to the circuit court. Why so? The jurisdiction of the probate court in respect to the grant of letters testamentary and of administration is original, general and unlimited. — Const, of Ala. art. 6, § 9; Gray’s Adm’r v. Cruise, 36 Ala. 559. The circuit court can have no greater jurisdiction. Besides, all of the,statutes providing for appeals from the probate court, give them concurrently to either the circuit or supreme court. I construe the discretion thus allowed to be that of the party appealing. The case of Ex parte Burnett, (30 Ala. 461,) was one in which the prisoner applied directly to this court for the writ of habeas corpus, which had been denied him by the probate judge. The court said: “ So far as judicial functions were invoked in this case, neither a chancellor nor a circuit judge had larger powers than the judge of probate. We know of no principle of law which requires the petitioner, after failing in his application to the judge of probate, to go for redress to either of those judicial officers, or the courts over which, they preside, before coming to this court and asking our superintendence and control of that inferior jurisdiction.” Ex parte Henderson, (June term, 1869,) is antagonistic to this decision, but it is based upon authorities which do not [263] sustain the proposition, that this court can not by certiorari take jurisdiction of this case. Ex parte Simonton (9 Por.) was a case of application to the supreme court in the first instance for a writ of habeas corpus. Collier, C. J., said: “ To bring the case within the qualifying terms of the proviso, (Const, art. 7; § 2,) it should be shown that some court or judge invested with authority to act, had undertaken to ■decide upon the case.” John v. The State, (1 Ala.) and Ex parte Tarleton, (2 Ala.,) were cases before courts from which no appeals were provided. In Ex parte Russell, (29 Ala.) the prohibition sought was in a matter about which the jurisdiction of the probate court was limited. In Ex parte Floyd, (39 Ala.,) application was made for an order to the clerk of the circuit court superseding a writ of restitution in a case of unlawful detainer. The court said it could not require the clerk to correct- any error into which he may have fallen, nor could it, by direct action, correct such error. The case of Field v. Milly Walker, (17 Ala. 80,) was brought up by certiorari to the judge of the county court, and was a proceeding by habeas corpus before him. The principle running through all of these cases is, that if the proceedings complained of occur in a court from which an appeal may be taken to this court, or before a judge or court equal in authority and jurisdiction to any other inferior judicial tribunal, resort may be had directly to this court for the exercise of its powers of general superintendence and control of inferior jurisdiction. The proceedings preliminary to a resort to this court for relief prescribed in Ex parte Croom, (19 Ala. 561,) have been exactly complied with in this case. Application has .been made to the probate court to set aside the order removing the executor, and has been refused. The facts upon which the petition invokes action are set out in writing, to-wit, the transcript from the records of the court, and are certified to by the judge. I admit that we may refuse to hear this case on the ground that the necessity is not indispensable, as there may be a resort to the circuit court. If the order complained of is void, as it is claimed to be, the course taken by the applicant is regular and free from laches. Grave consequences to the parties interested [264] are involved. All subsequent proceedings in tbe probate court, or in other courts, respecting the estate, and the rights of other parties in relation to it, may hereafter be held to be nugatory. If we send the parties to the circuit court, delay will be occasioned, costs will be incurred, and tedious litigation entailed upon them. The necessity for revising the proceedings of this inferior jurisdiction is little short of imperative, and the authority to do so is given both by statute and the constitution. The supersedeas granted is not intended to have any greater etfect than to stay the proceedings pending in the ¿probate court, just where they are now, until the further order of this court in the matter. The motion to dismiss the certiorari and to quash the supersedeas is overruled.