Randall v. Wadsworth

130 Ala. 633

• Court: Supreme Court of Alabama
• Decided: November 15, 1900
• Status: Published

Opinions

DOWDELL, J.

The appellants, who are sureties on the bond of one Joseph Powell, guardian of one Henry Powell, a minor, filed their petition for a supersedeas of an execution issued -by the probate court of Bibb county on a decree rendered by said court upon the final settlement of said Joseph Powell, the said guardian, of liis said guardianship. As grounds for a super-sedeas the petitioners ayer and 'Charge fraud in said settlement and in the procurement of said decree. The fraud charged consisted in an alleged false statement of his account by the said guardian in that it failed to ask credit for certain items which the petitioners claimed he should have been credited with, and that in said false statement of his account for final settlement as such guardian that J. B. Wadsworth, respondent, who was appointed as successor to said Joseph Powell in the guardianship, acted and was in collusion with him. The respondent made answer to the petition; denying its allegations of fraud and collusion, and further setting forth what is averred in the answer to be a true statement of the facts. A trial was had, and upon the hearing a judgment was rendered by the court denying to the petitioners a supersedeas, and it is from this judgment the present appeal is prosecuted.

The first 'and second assignments of error relate to the rulings of the court on the pleadings. In the first, the overruling of petitioners’ demurrer to respondent’s answer to the petition is assigned. This assignment finds no support in the record, since no judgment of the court- on the demurrer is shown. It has been repeatedly decided by this court that a mere recital in the record to the effect that, “demurrer was overruled,” or “sustained,” is nothing more than a memorandum, wholly wanting in the essential elements ef a judgment, and therefore insufficient to support an assignment of error based upon it.

The second assignment is based on the ruling of the court on motion to strike certain pleadings'. Rulings on motions to strike can be presented for'review on anpeal only by bill of exceptions. Motions of this character are usually oral, and form no- part of the record as pleadings proper, and although reduced to writing and copied into the record, cannot be considered as forming any part of the proceedings constituting tlie record proper in tlie court below. • There is a similar motion, with.a statement of the rulings thereon, to that here assigned as error, copied in the bill of exceptions, but. no assignment, of error is based on this, the assignment here being specifically directed to the motion and rulings thereon contained in the transcript as forming a part of the record in the trial court. Moreover, tlie exception upon which the assignment is based is without merit, as the petitioners ashed, and were granted, leave, in lieu of the replications which were stricken, to amend their petition in regard to the matters wet up in the replication in a manner to give them the benefit of any legal -defense contained in said replications, which said amendment was subsequently voluntarily withdrawn by petitioners.

The third and fourth assignments of error are based upon the rulings as to the testimony of one J. F. Thompson, -and are clearly wanting in merit. If any error was committed, it was subsequently cured, as this witness was withdrawn from the stand, and only testified after further search had been made by him for' the papers in question.

Assignments numbered from five to thirteen, inclusive, relate to the introduction of secondary evidence, and may he considered together. The papers in question, on -account of the loss of which the secondary evidence was offered, constituted a part of the file of the case being tried. The probate judge presiding at the trial was the proper custodian of these papers. He could not testify as a witness in a case which was being tried before him. — Dabney v. Mitchell, 66 Ala. 495. He •'caused a search to be made in his presence by J. F. Thompson, the son of bis predecessor in office, who was shown to have assisted his father while probate judge, and to be familiar with the office. This was undoubtedly proper. After such search and a failure to find the missing papers, as shown by the record, we think a sufficient predicate was laid for the introduction of the secondary evidence, to the admission of which exceptions were reserved by the petitioners and here assigned as error.

The 16th assignment of error relates to the ruling of the court upon a motion to strike an amendment offered by petitioners. The bill of exceptions failsi to show that any exception was reserved to the action of the court in this regard, in the absence of an exception to the allowance of an amendment to the pleading, or to the striking of the same, on motion, there can be no revision of the action unless properly presented by bill of exceptions.—Tuscaloosa Wharf Co. v. Mayor, 38 Ala. 516, and cases there cited.

The two remaining assignments of error go to the merits of the case. In these two, the rightfulness of the decree rendered is challenged. A final settlement made by the guardian in the probate court, showing the amount of his indebtedness- to his ward, is conclusive alike on the guardian and his sureties unless they can impeach it for fraud.—Williamson v. Howell, 4 Ala. 693; Chilton v. Parks, 15 Ala. 671. The omission of the guardian to bring forward at the settlement credits to which he was entitled, even though he is insolvent and knowingly makes the omission, is not fraud justifying relief by supersedeas—the ward or succeeding guardian not participating in or procuring -said omission.—Williamson v. Howell, supra. In a .proceeding for a supersedeas, that which forms the ground for relief must either rest on facts accruing subsequent to the decree, such as satisfaction; or if it relates to an'tecedent facts, must show fraud in the -decree, or want of jurisdiction in the -court, apparent on the face -of the record, or a denial of the relation which authorizes execution.—Gravett v. Malone, 54 Ala. 21. As stated above, the ground upon which petitioners sought relief was that of fraud in the statement of the account for final settlement and the procurement of the decree thereon. This was denied by the answer, and upon this issue the case was tried. A good deal of the evidence introduced consisted in oral testimony given before the court. The bill of exceptions -does not purport to -set out all the evidence, and upon this an affirmance of the decree might be rested; but apart from this, in reviewing the decision of the probate court on a disputed question of fact dependent upon oral testimony, the rule of tills 'court is not to reverse unless it is so manifestly against the evidence that a judge at nisi pr-Uts would set aside a verdict rendered on the same testimony.—Brewer v. Ernest, 81 Ala. 435.

Another question discussed by counsel is that of the jurisdiction of the court in granting letters of guardianship to Wadsworth as the successor of Powell. That the jurisdiction of the court attached, and rightfully so, in the grant ,of letters of guardianship to Powell, is not questioned. The court, having thus acquired jurisdiction, the fact of the removal of the guardian to another county, carrying with him his ward, does not terminate the. jurisdiction. The doinieil of the ward was that of his father at the time of his death, and this domicil could not be changed by the mere act of the guardian so as to defeat the jurisdiction which was acquired before such removal. The statute provides the only way in which the jurisdiction once acquired may be changed to that of a different county. — Code, §§ 2368, 2373, 2247. See also Moses v. Faber, 81 Ala. 449; Carlisle v. Tuttle, 30 Ala. 613.

We find no reversible error in the record, and the decree of the probate court is affirmed.