Smith v. Smith

Supreme Court of Alabama

Smith v. Smith

596 So. 2d 1, 1992 WL 10596

CourtSupreme Court of Alabama

DecidedJanuary 24, 1992

Docket1901814

StatusPublished

Cited by16 cases

This text of 596 So. 2d 1 (Smith v. Smith) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. Smith, 596 So. 2d 1, 1992 WL 10596 (Ala. 1992).

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Opinion

On May 24, 1982, James L. Smith was appointed guardian of Lori Lea Smith, then age 12. On August 16, 1989, on a motion filed by Lori Lea for an accounting and final settlement of the affairs of the guardianship, the Probate Court of St. Clair County entered a judgment against James L. Smith and in favor of Lori Lea in the amount of $80,254.48. James appealed that judgment to the Circuit Court of St. Clair County, pursuant to Ala. Code 1975, § 12-22-20. The circuit court affirmed the judgment, and James then appealed to this Court.

Two issues have been presented for our review: 1) whether James Smith was entitled to a trial de novo, with a jury, in the circuit court and 2) whether the circuit court erred to reversal in affirming the probate court's judgment.

With regard to the first issue, this Court specifically held in Prestwood v. Prestwood, 395 So.2d 8 (Ala. 1981), that §12-22-20, which provides that the judgment of a probate court may be reviewed on appeal by a circuit court, does not allow a trial de novo, with a jury, in the circuit court. As to the second issue, we note that the record contains none of the evidence presented to the probate court. The record indicates that this evidence was certified to the circuit court and that the circuit court "reviewed the file of the probate court," as well as the probate court's judgment, prior to rendering its decision. This Court is bound by the record, and if the record does not contain the evidence considered in the circuit court, this Court has no basis upon which it can review the circuit court's judgment. Consequently, because the evidence relied on by Smith in support of his argument is not before us for review, we will presume that the evidence was sufficient to sustain the judgment against him. See Berryhill v. Mutual ofOmaha Insurance Co., 479 So.2d 1250 (Ala. 1985). *Page 2

For the foregoing reasons, the judgment is affirmed.

AFFIRMED.

HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur.

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On May 24, 1982, James L. Smith was appointed guardian of Lori Lea Smith, then age 12. On August 16, 1989, on a motion filed by Lori Lea for an accounting and final settlement of the affairs of the guardianship, the Probate Court of St. Clair County entered a judgment against James L. Smith and in favor of Lori Lea in the amount of $80,254.48. James appealed that judgment to the Circuit Court of St. Clair County, pursuant to Ala. Code 1975, § 12-22-20. The circuit court affirmed the judgment, and James then appealed to this Court.

Two issues have been presented for our review: 1) whether James Smith was entitled to a trial de novo, with a jury, in the circuit court and 2) whether the circuit court erred to reversal in affirming the probate court's judgment.

With regard to the first issue, this Court specifically held in Prestwood v. Prestwood, 395 So.2d 8 (Ala. 1981), that §12-22-20, which provides that the judgment of a probate court may be reviewed on appeal by a circuit court, does not allow a trial de novo, with a jury, in the circuit court. As to the second issue, we note that the record contains none of the evidence presented to the probate court. The record indicates that this evidence was certified to the circuit court and that the circuit court "reviewed the file of the probate court," as well as the probate court's judgment, prior to rendering its decision. This Court is bound by the record, and if the record does not contain the evidence considered in the circuit court, this Court has no basis upon which it can review the circuit court's judgment. Consequently, because the evidence relied on by Smith in support of his argument is not before us for review, we will presume that the evidence was sufficient to sustain the judgment against him. See Berryhill v. Mutual ofOmaha Insurance Co., 479 So.2d 1250 (Ala. 1985). *Page 2

For the foregoing reasons, the judgment is affirmed.

AFFIRMED.

HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur.

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Bluebook (online)

596 So. 2d 1, 1992 WL 10596, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-smith-ala-1992.

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