Wilkerson v. Hagan

COLEMAN, Justice. The proceedings on which this appeal is taken occurred in the Probate Court and Circuit Court of Mobile County. Appellant is executor of an estate being administered in the probate court. Appellee filed a claim against that estate. Under § 216 of Title 61, Code 1940, as amended by act approved July 1, 1943, appellant gave notice that the claim filed by appellee against said estate is disputed in whole, and made application to the probate court to hear and pass on the validity of appellee’s claim. On March 16, 1955, the probate court entered an order holding the claim valid in part, and invalid as to the remainder. On April 15, 1955, appellant (executor) filed in the probate court a notice of appeal to the circuit court. On April 19, 1955, appellant filed in the probate court an instrument purporting to be security for costs of the appeal. There is argument as to whether or not this instrument constituted a proper bond; but, for convenience, it will be hereinafter referred to as the appeal bond on the appeal from the probate court to circuit court. Appellee filed a motion in the circuit court to dismiss the appeal in that court. The motion specifies several grounds. One ground is that the appeal bond mentioned above was filed more than thirty days after the rendition of the judgment appealed from. Because this decision rests on that ground, we pretermit consideration of the other grounds of the motion. The circuit court granted the motion and dismissed the appeal. From that order or judgment of the circuit court, the appellant-executor has appealed to the Supreme Court. The appellee has filed a motion in the Supreme Court to dismiss the appeal on the ground that the order of the circuit court dismissing appellant’s appeal from probate court is not such judgment or decree as will support an appeal to the Supreme Court. The case was submitted here on appellee’s motion to dismiss and on the merits. Motion to Dismiss Appeal Appellee’s argument appears to suggest two reasons why the motion to dismiss ought to be granted. One reason suggests that appeal is not the proper remedy for review, and that perhaps mandamus is. “ * * * In Ex parte Adams, 216 Ala. 241, 242, 113 So. 235, 236, Chief Justice Anderson, writing for the court, said: “ ‘It seems from the former decisions of this court that, when a cause is dismissed or stricken from the docket without more, it is not such a final judgment as will support an appeal. Ex parte (State ex rel.) Attorney General, 142 Ala. 87, 38 So. 835, 110 Am.St.Rep. 20; Davis v. McColloch, 191 Ala. 520, 67 So. 701. It seems, however, that, where the dismissal is followed up by a judgment in favor of defendant against the plaintiff for the [517] cost, it is such a judgment as will support an appeal, and mandamus is not the proper remedy to revise the action of the trial court. Ex parte Hendree, 49 Ala. 360. * * *.’ ” Dorrough v. McKee, 264 Ala. 663, 89 So.2d 77, 80. In the instant case, in the judgment appealed from, the circuit court granted the motion to dismiss in that court, and taxed costs against appellant, “for the recovery of which let execution issue.” In this case, appeal and not mandamus appears to be the proper remedy for review. Appellee’s second reason supporting the motion to dismiss here is stated in brief as f ollov/s: “The court below not having acquired jurisdiction in the premises, any judgment rendered or order taken will not support an appeal.” Opposing appellee’s contention are the following statements : “In that case [Craig v. Root, 247 Ala. 479(12), 25 So.2d 147] the trial court did not acquire jurisdiction of the subject matter. Since the court did not acquire jurisdiction, it had no power to render any judgment except to dismiss the proceeding. * * * ” (Emphasis supplied.) State v. Pollock, 251 Ala. 603, 38 So.2d 870, 873, 7 A.L.R.2d 757. “There is no feature of the judgment which is sufficient to support an appeal. If it were a final judgment dismissing the cause it would be sufficient to that end. Ex parte Hendree, 49 Ala. 360. * * *” Townsend v. McCall, 262 Ala. 235, 78 So.2d 310, 311. Finley v. Jenkins, 264 Ala. 536, 88 So.2d 329, 330, is in point. In that case, suit began in the Intermediate Civil Court of Birmingham. Defendant filed motion to dismiss because the amount sued for was below jurisdiction of that court. The Intermediate Court granted the motion, dismissed the cause, and taxed plaintiff with costs. Plaintiff applied to circuit court for mandamus. Demurrer to petition was sustained and plaintiff appealed to Supreme Court. This court determined that mandamus as sought by plaintiff was not the proper remedy and said: “ * * * here there was a final judgment of the Intermediate Civil Court of Birmingham. That court determined that it had no jurisdiction as it had a right to do. Crump v. Knight, 256 Ala. 601, 56 So.2d 625. This finding constitutes a valid judgment and therefore will support an appeal. The plaintiff therefore had a clear and adequate remedy by appeal to the circuit court.” In the instant case, appeal and not mandamus is the proper remedy, and the motiofi to dismiss is overruled.