Opinion
7 Div. 86.
June 17, 1920.
Appeal from the Circuit Cour, Calhoun County; Hon. Hugh D. Merrill, Judge.
T. C. Sensabaugh and C. F. Douglass, both of Anniston, for appellant.
The court erred in transferring the cause from the jury to the nonjury docket, and in affirming the judgment of the probate court, without giving contestant an opportunity to be heard by his witnesses and counsel. 72 Ala. 443; section 1394, Code 1907; 187 Ala. 367, 65 So. 405. The Constitution gives petitioner a right of trial by jury in the circuit court. Article 1, § 11; Acts 1915, p. 940. Mandamus is the proper remedy. 36 Ala. 384; 123 Ala. 259, 26 So. 487, 45 L.R.A. 772.
C. H. Young, of Anniston, for appellee.
Courts of probate have general jurisdiction in matters of estates. 117 Ala. 221, 23 So. 528. The appeal therefrom is direct, and not open to collateral attack on appeal to the circuit court. 106 Ala. 516, 17 So. 666; 95 Ala. 505, 11 So. 156; 47 Ala. 290; section 2857, Code 1907; 168 Ala. 179, 52 So. 895. There was no bill of exceptions, and hence there was nothing for the circuit court to consider. Sections 2855-2867, Code 1907; 98 Ala. 604, 13 So. 519; 195 Ala. 36, 70 So. 678.
In the probate of wills, and in granting letters testamentary and of administration, the probate court has not only exclusive jurisdiction, but has the powers and attributes of courts of general jurisdiction. Acklen v. Goodman, 77 Ala. 521.
Under our Statutes (sections 2855-2867, Code 1907; sections 1888-1899, Code 1852), an appeal from a decree or judgment of the probate court on a contest as to the validity of a will may be taken by the party aggrieved to either the circuit court or the Supreme Court. On such appeals the jurisdiction of the circuit, as well as of the Supreme Court, is revisory only, and the judgment is reviewed solely upon the record, including a bill of exceptions when required. Sections 2863, 2864, Code 1907; Tapp v. Cox, 56 Ala. 553; Truett v. Woodham, 98 Ala. 604, 13 So. 519.
The petitioner conceives that a provision found in section 1 of the act of September 28, 1915 (Gen. Acts 1915, p. 939), "to regulate and prescribe the method of securing jury trials in civil causes at law and in misdemeanors," viz.:
"In all cases in the circuit court brought by appeal or certiorari from judgments of justices of the peace or other inferior courts, the issue and question of fact shall be tried by the judge of the court without the intervention of a jury unless a demand for a trial by jury be made in writing," etc.
— has the effect of repealing the provisions of the Code which limit the proceedings on appeals like this to a review of the record of the trial in the probate, and authorizing a trial de novo upon the demand of either party for a jury trial in the circuit court.
This contention is wholly untenable. The provision quoted was not intended, and cannot possibly be construed as intending, to create new rights of trial by jury in the circuit court; but, on the contrary, its sole purpose is to take away the right to have a trial by jury, unless that right is seasonably claimed in the manner prescribed, in all cases wherein, upon appeal, the trial is to be de novo in the circuit court. The circuit court has no jurisdiction whatever of the probate of wills, or of contests thereof, except the limited appellate jurisdiction given by the statutory provisions referred to, a jurisdiction which is revisory only, and which must be exercised in accordance with those provisions.
Petitioner relies upon the case of Montgomery So. Ry. Co. v. Sayre, 72 Ala. 443, as supposedly sustaining his contention. There an appeal was taken to the circuit court from a preliminary assessment in ad quod damnum proceedings, under a statute providing that —
"An appeal may be taken by either party, and the same proceedings shall be had as in ordinary cases of appeal from the probate to the higher courts of this state." Section 1838, Code 1876.
Under the compulsion of construing that statute as in harmony with the constitutional guaranty of a trial by jury in all cases of appeal from such assessments, it was held that the "proceedings" thus to be assimilated were referable to the preliminary steps required to be taken, and not to the mode of trial in the circuit court. This was confessedly a latitudinarian construction, and justified only by the necessity of conforming to the Constitution, and it was pertinently observed:
"The case reaching that [the circuit] court by appeal, the Constitution intervenes, and, on the demand of either party the damages must be assessed by a jury."
Between that case and this there is no sort of analogy, for here the petitioner had already had a trial by jury in the court of original and exclusive jurisdiction.
But, apart from the merits of the question, we see no reason why petitioner's remedy by appeal from the judgment of the circuit court would not have been fully adequate. If he had been entitled to a trial de novo by jury, the denial of that right, and the rendition of judgment by the court without the verdict of a jury, would be error available on appeal to invalidate and reverse the judgment; and the judgment of reversal would have placed him in statu quo with full protection in the premises.
In either aspect of the case, the petition is without merit, and the demurrers must be sustained. And since petitioner cannot be entitled to relief upon any possible amendment, the petition will be dismissed.
Writ denied, and petition dismissed.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.