Wright v. Fannin , 229 Ala. 278 ( 1934 )

On Rehearing. It is conceded, and such is the fact, that Susie Fannin Wright is bound by the decree of date of October 25, 1929, declining to set aside the order confirming the report of the commissioners setting apart the homestead to the widow, Maud Fannin. Appellant Wright testified on this hearing of the lack of notice to her of proceedings to set apart that homestead, and that she moved for vacation on having the knowledge thereof. Failing in this effort she did not appeal or seek further to protect her interest in the land, if such she had. She did not testify that her brother (coappellant) had no notice; nor did he testify that he did not appear by counsel on the proceedings to vacate that order or decree. the court's order reciting his appearance or representation.

It is true the petition in her name for setting aside the decree of confirmation of the report of the commissioners setting apart the homestead was verified by Mrs. Wright, alleged the lack of notice to her, and recited the nonresidence of her brother, J. J. Fannin.

This bill shows they had theretofore made the joint effort for sale of the land for partition between the same parties as joint tenants, and that they failed in this effort after appeal to this court (Wright et al. v. Fannin et al., 219 Ala. 234,121 So. 528); that immediately after the affirmance of that case, between the same parties and affecting the same land, the proceedings for homestead were had by the former respondent and appellee in that case, with the result that statutory proceedings being complied with after notice, as recited in that decree, the homestead was set apart to Mrs. Maud Fannin, vesting the absolute title in her. It is recited, among other things, in that decree:

"This being the day set for the hearing of the report of R. H. Long, J. E. Starnes and J. T. Vandergrift, Commissioners heretofore appointed by this Court to set apart homestead exemptions to Maud Fannin, widow of A. S. Fannin, deceased, and it appearing to the satisfaction of the Court that more than thirty days have elapsed since the filing of the report of the Commissioners in this matter, and it further appearing to the Court that the next of kin, Susie Wright, who resides in Jefferson County, Alabama, and Javis Fannin, a resident of the State of Mississippi, have had due and legal notice of this proceedings, as appears from certificate showing that notice of the filing of the said report of the commissioners, was published for three successive weeks in the Pell City News, a newspaper published at Pell City, St. Clair County, Alabama, for more than ten days prior to this date.

"And it further appearing to the satisfaction of the Court that said commissioners acted in fairness and that the homestead exemption allowed is not excessive, and that no exceptions have been filed to said report."

It is alleged by respondent in her answer and cross-bill:

"Respondent further shows that on to-wit: September 18, 1929, the complainants in this cause filed in the probate court of said county a petition to set aside the order of said court confirming the report of the commissioners setting apart exemptions to respondent which petition was set down for hearing and that on to-wit: October 25, 1929, after hearing proof offered in support of said petition, the motion and petition were overruled; that the averments in said petition were and are identical with the averments and charges in the Bill of Complaint and amendments in this cause, the basis of which the complainants seek a decree against this respondent; that upon a hearing of said petition and motion in said probate court, a large number of witnesses, to-wit: nineteen, testified in support of and against the averments in said petition.

"A copy of said motion and petition together with the orders thereon are hereto attached and asked to be made a part hereof.

"Respondent for further answer says: that the issues, allegations and averments as set out in the original Bill of Complaint and the amendments thereto and each paragraph thereof in same, separately and severally have been adjudicated by a court of competent jurisdiction, to-wit: the probate court of St. Clair County, Alabama, and that the same decided in favor of the respondent by the decree of said court.

"By way of cross bill the respondent would further show to the court that the matters set up in the original Bill of Complaint and amendments thereto by complainants having heretofore been adjudicated by a court of competent jurisdiction, to-wit: the probate court of St. Clair County, Alabama, in favor of the respondent in which court the complainants appeared in person and by attorneys and subjected themselves to the jurisdiction of said court, subjected themselves and invoked jurisdiction of said court, and are thereby bound by a decree and order of said court and respondent prays that the proceedings in said probate court of St. Clair County be by a decree of this court in all things confirmed."

To this complainants answered, saying "that they were not made parties or given notice as required by law of the filing of the petition in the probate court of said county as aforesaid by the said Maud Fannin, or of the report of the commissioners or appraisers, or of the order confirming same, entered by said court on the 8th day of July, 1929, and no knowledge or information of same for more than twenty days after said date as last aforesaid. That said proceedings were null and void."

This record recites that in the effort to review and set aside the decree of confirmation, "This case being called upon motion of J. L. Drennen, Atty. for Javis Fannin and Susie Fannin * * * was continued until October 18, 1929"; that "This case coming up to be heard on the 18th day of October, 1929, the same was continued until the 25th day of October, 1929," and "This cause coming on to be heard before me on this date, and after hearing the testimony and proof offered by both parties, and after having duly considered the same, motion is overruled and denied. This October 25th, 1929, C. D. Adkins, Judge of Probate."

There is no evidence here that indicates by whom the proof was offered, as is alleged in the judge's order as being offered by both parties, or of the nature and extent of that proof on which the court acted, binding the parties on that hearing.

Thus the equivocal fact or facts under this record and the pleadings on that rehearing — the recitals of the court in the original decree setting aside the homestead and in the decree and order on the rehearing to vacate the former order, of due notice and of appearance and representation by counsel on the hearing — are presented under the rule of Alford v. Claborne, post, p. 401, 157 So. 226; Whitaker v. Kennamer, ante, p. 80,155 So. 855.

We have indicated that Javis J. Fannin did not testify (so far as the record discloses) that he had no knowledge or notice of the proceeding to decree of setting aside the homestead, or that he was not a party to, nor did he appear or testify, or was not represented on the hearing as the court recites. The sister, Susie Fannin Wright, as a witness here, is silent on these important questions of fact, and recitals in the court's order may be looked to for the fact of notice; she only testifying of her lack of notice or knowledge of the pendency of the original proceedings, as we have indicated.

The petition for homestead by the widow contained all the jurisdictional facts. Williams v. Overcast et al., 229 Ala. 119,155 So. 543; Alford v. Claborne, supra. In the last-cited authority, Mr. Justice Gardner observed where there is ambiguity within the rule the other pleadings, including the recitals in the decree, may be looked to in a proper interpretation and construction of the pleadings and issue tried and concluded by the hearing.

In this state of the record, the lack of or unsatisfactory condition of the evidence tending to impeach or contradict the solemn recitals of the court in the decree and order, and the failure of evidence that fraud intervened and entered into the rendition of the decree and order in question, we find no denial of the right of due process in the premises.

The application for rehearing is denied as to both appellants assigning errors.

Application overruled.

GARDNER, BOULDIN, and FOSTER, JJ., concur.