Opinion
4 Div. 855.
November 14, 1935. Rehearing Denied December 12, 1935.
Appeal from Probate Court, Houston County; H. K. Martin, Judge.
W. Jay Tindle, W. L. Lee and L. A. Farmer, all of Dothan, for appellant.
In view of the decision, it is not necessary that brief on the merits be here set out.
J. J. Speight, of Dothan, for appellee.
Section 7939 of the Code applies to and controls all appeals taken from decrees of the probate court on exceptions to report of commissioners setting aside exemptions, which must be taken within 20 days. McDaniel v. McDaniel, 199 Ala. 467, 74 So. 947; Ingram v. Ingram, 119 Ala. 256, 24 So. 47; Herring v. Griffin, 211 Ala. 225, 100 So. 202; Jones v. Hubbard, 208 Ala. 269, 94 So. 167; Ex parte Walter, 202 Ala. 281, 80 So. 119.
The cause was submitted upon the motion to dismiss the appeal, and on the merits.
The decree overruling the exceptions to the report of the commissioners setting aside exemptions to the petitioner and dismissing said contest, ratifying the report and confirming the allowance of exemptions and homestead to the petitioner as the widow of decedent after trial of the facts, is of date of January 10, 1935. The appeal was taken on July 8, 1935, within six months from such final decree. De Graffenried v. Breitling, 192 Ala. 254, 68 So. 265.
The right of appeal is given by sections 6078, 6114, and 7939 of the Code, and other special statutes, in cases where applicable.
The time within which an appeal may be taken (in the absence of special provisions to the contrary) is six months, as provided by section 6127 of the Code. Was there special statutory provision and limitation of the time within which the appeal may be taken in the case before us? It is provided in article 4, Code of 1923 (vol. 3, p. 890), § 7927 et seq., for the setting apart of exemptions to the widow and minor, children; for exceptions to reports of appraisers setting aside exemptions, section 7933, Code; the trial of the issues of fact, section 7935, Code; for costs on exceptions, section 7938; and for appeal from a decree on such exceptions by the party feeling aggrieved appealing "within twenty days" to this court, giving security for the costs of the appeal. Section 7939. It is declared in Herring et al. v. Griffin et al., 211 Ala. 225, 100 So. 202, that notwithstanding the general provisions of section 6114 of the Code, governing appeals from decrees of the probate court, such provisions cannot apply when the Legislature has declared otherwise by special provisions. City of Birmingham et al. v. Louisville N. R. Co., 216 Ala. 178, 188, 112 So. 742. An appeal taken after the lapse of 20 days, as required by statute, will be dismissed on motion. McDaniel v. McDaniel, 199 Ala. 467, 74 So. 947; Herring et al. v. Griffin et al., supra; Ingram, Adm'r, v. Ingram, 119 Ala. 256, 24 So. 47.
Appellee's motion is granted, and the appeal is dismissed.
BOULDIN, BROWN, and KNIGHT, JJ., concur.