Opinion
6 Div. 65.
January 28, 1943. Rehearing Stricken February 25, 1943.
Appeal from Probate Court, Cullman County; H. H. Kinney, Judge.
Petition of Charlie Gardner and Levi Gardner, resisted by Stanley Lee Gardner, to sell lands of Clara Jane Gardner, deceased, for division among parties as joint owners or tenants in common.
From a decree of sale, respondent appeals.
Affirmed.
It appears that Clara Jane Gardner died leaving as her only heirs the parties hereto, and being possessed of the real property in question; that Stanley Lee Gardner was appointed as special administrator of the estate of said decedent, but was thereafter removed as such; that upon the petition of appellees, one Newman was appointed as administrator, April 21, 1941.
The record discloses a decree by one of the judges of the circuit removing the estate from the probate court to the circuit court in equity, upon the petition of Stanley Lee Gardner, dated May 23, 1941. Thereafter, Levi and Charlie Gardner filed a petition with said Circuit Judge praying that said order of removal be set aside, and said circuit judge thereupon (June 5, 1941) entered an order that said order of removal had been improvidently made, and did set aside and annul said order of removal.
Thereafter Levi and Charlie Gardner filed their petition in the probate court, under Code 1940, Tit. 47, § 210, to sell the land in question, the proceeds to be delivered to said Newman, as administrator of the estate of Clara Jane Gardner, deceased for distribution to the parties according to their interest, after final settlement by said Stanley Lee Gardner, as administrator. After hearing, the probate judge granted the petition to sell the land, and respondent has appealed.
J. N. Powell, of Hartselle, for appellant.
The probate court is a court of limited jurisdiction, and had no right or authority to proceed further when appellant interposed and asserted an adverse claim to the property. Code 1940, Tit. 47, § 208; McCaa v. Grant, 43 Ala. 262; Mosely v. Tuthill, 45 Ala. 621, 6 Am.Rep. 710. Having removed the administration from the probate court, the circuit court was without authority to transfer it back to the probate court.
Herman J. Stewart, of Cullman, for appellees.
Removal of administration improvidently transferred to circuit court may be remanded to probate Court. McCraw v. Cooper, 215 Ala. 51, 108 So. 850. Removal to circuit court does not abrogate jurisdiction of probate court under Code 1940, Tit. 47, § 210. The probate court acted after hearing evidence. There being no bill of exceptions, no question of evidence is before the court on appeal.
The appeal is from a decree of the probate court ordering sale of lands for division among decedent's next of kin.
The jurisdiction of the probate court, among other things, is to grant letters testamentary and of administration, or for the revocation of such letters; for the sale and disposition of the real and personal property belonging to intestate's estate and for the distribution of same; and,
"To issue all citations, letters testamentary, of administration and guardianship, subpoenas, executions, and all other process which is necessary for the exercise of his powers, the jurisdiction of the court, and the enforcement of its judgments, orders and decrees." Code 1940, T. 13, §§ 278-280.
The provisions of statute as to the transfer or re-transfer of pending causes are contained in the Code of 1940, T. 13, §§ 139-156.
In Pierce v. Barbaree, 238 Ala. 676, 678, 193 So. 115, 116, it is declared: "The right of removal of administration of estates from the probate court to a court of equity is stated in §§ 6478 and 8102 of Michie's Code [Code 1940, Tit. 13, § 139; Tit. 21, § 26]. The change in the statute, from Acts of 1911, p. 574, to that of the Act of 1915, p. 738, was first indicated in Dent v. Foy et al., 204 Ala. 404, 85 So. 709, and later in Irwin v. Irwin, 227 Ala. 140, 148 So. 846."
The decree of the circuit court in equity recites that the transfer from the probate to the circuit court in equity was improvidently done, for that the settlement of the special administration had been ordered within the time specified in the order and that time had not expired when the order of removal was made, and the order was rescinded and the cause remanded to the probate court.
We see no error in the transfer of the cause to the probate court. The order of removal was made when settlement had been begun by the order. Ex parte Kelly, Ala.Sup., 8 So.2d 855, 857 ; Code 1940, T. 13, §§ 138, 139; Hinson v. Naugher, 207 Ala. 592, 593, 93 So. 560. The probate court had thereby actually entered upon the exercise of its jurisdiction in and for a final settlement of that administration of the matters of the estate. Ex parte McLendon, 212 Ala. 403, 405, 102 So. 696. No matter had arisen calling for relief not available in the probate court. Crossland v. First National Bank, 233 Ala. 432, 172 So. 255.
We find no error of the trial court that is presented by the record proper.
There being no bill of exceptions, we cannot consider the other assignments of error predicated on the evidence.
The decree of the probate court is affirmed.
GARDNER, C. J., and BROWN, and LIVINGSTON, JJ., concur.