Epperson v. Rice

102 Ala. 668

• Court: Supreme Court of Alabama
• Decided: November 15, 1893
• Status: Published

Opinion

PIE AD, J.

There seems to us no merit in this appeal. It is not questioned that the probate judge was incompetent to try the proposed contest, by reason of relationship to one of the parties; and the only question is whether Green P. Rice was lawfully appointed as special judge to try it. Section 802 of the Code provides, in such cases, that the judge of probate must certify his incompetency to the register in chancery of the county, or, if the register is incompetent, to the judge of the circuit or chancellor of the divison, and such register, judge or chancellor must, upon’ such certificate, appoint a disintérested person, practicing in the county, learned in the law, to act as special judge of probate; and such special judge, in relation to such matter or proceeding, shall have the jurisdiction and authority, and discharge the duties, of judge of probate. And the orders and decrees made or rendered by him shall be entered on the records of the court, and shall have the force and effect, and shall be subject to revision on appeal, or by other revisory remedy, of orders and decrees of the court of probate, or of the judge thereof. It will be observed the provision applies as well to special proceedings before the probate judge, as such, as before the court of probate. In the present case, it was at first supposed that the register was also incompetent by reason of relationship, and the judge of probate certified his own incompetency to the circuit judge, who thereupon appointed Green P. Rice to sit as special judge in the cause. Afterwards, that proving to be an error, or the register’s incompetency being doubtful, the judge of probate, within ample time, certified his own incompetency to the register, who thereupon appointed the same person — Green P. Rice — who acted under both appointments. Clearly, one ’ or the • other of these appointments was legal, and the acts of the special judge will be referred to the legal appointment. Questions touching the regularity of the proceeding can not properly be raised on petition for the writ of prohibition. That writ is to prohibit usurpation of power. The special judge having, by a lawful appointment, acquired jurisdiction in the premises, his errors and irregularities, if any lie committed, should be corrected in some other way, and not by prohibiting the exercise of his jurisdiction. The principle is so obvious, it is unnecssary to say more.

Affirmed.

Brickell, C. J., not sitting.