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Docket Number

6 Div. 919.

Attorney(S)

Pinkney Scott, of Bessemer, for appellant. The court erred in permitting another party to intervene and contest Emma's right, without an issue made as required by section 2525, Code 1907. 176 Ala. 480, 58 So. 444; section 10, Const. 1901; 129 Ala. 232, 29 So. 676. The court erred in permitting the marriage certificate from Sumter county in evidence. Sections 4886, 4887, Code 1907, and authorities supra. The divorce proceedings did not give Ann Fountain the right to remarry. 139 Ala. 292, 35 So. 884; 173 Ala. 111, 55 So. 632; 200 Ala. 329, 76 So. 102. The court erred in granting a new trial. Authorities supra, and 101 Ala. 112, 13 So. 386; 197 Ala. 231, 72 So. 503; 196 Ala. 631, 72 So. 171; 125 Ala. 644, 27 So. 843. Mathews Mathews, of Bessemer, for appellee. The divorce granted authority to remarry. Section 3796, Code 1907; 20 Ala. 629; 33 Cal. 363; 75 Cal. 213; 34 Ind. 365.

Judges

McCLELLAN, J.

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Smart Summary

Hines v. Hines et al., Supreme Court of Alabama (Jan. 15, 1920)

Factual and Procedural Background

Two women filed competing petitions in the Jefferson County Probate Court seeking appointment as administratrix of the estate of the decedent referenced as Sam or Elias Hines. Each petitioner claimed to be the decedent's widow: Emma Hines (appellant) referred to the decedent as "Sam Hines," and Annie (appellee) referred to him as "Elias Hines." On December 31, 1918, the probate court decided in favor of Emma and ordered issuance of letters of administration to her, with issuance suspended 30 days for appeal by Annie. Annie filed a petition for rehearing on January 4, 1919. Counsel agreed at various times to hearings in Birmingham and later at Bessemer; the record reflects a written consent by Emma's attorney for a Birmingham hearing that was later annulled by an "agreement of counsel" passing the matter to Bessemer. The probate court heard affidavits and, on January 29, 1919, granted a rehearing/new trial to be held at Birmingham. Emma appealed, asserting among other things that the probate court lacked authority to grant the new trial at Birmingham rather than at Bessemer. On retrial the probate court concluded that the names Sam and Elias referred to the same person, that Annie had been validly married to the decedent in 1895, and that the earlier annulment of Annie's prior marriage had permitted her to remarry; the Supreme Court of Alabama affirmed the probate court's order.

Legal Issues Presented

Whether the decedent known as "Sam Hines" and "Elias Hines" was a single person (identity of the decedent).
Whether Emma or Annie was the lawful wife of the decedent at the time of his death.
Whether the probate court had authority (venue/jurisdictional power) to grant a rehearing/new trial at Birmingham rather than at Bessemer under the act of September 16, 1915 (i.e., whether venue rules or statutory provisions limited where the probate court could perform that judicial function).

Arguments of the Parties

Appellant's Arguments (Emma Hines)

The probate court erred in permitting another party to intervene and contest Emma's right without an issue made as required by section 2525, Code 1907 (cited authorities: 176 Ala. 480, 58 So. 444; 129 Ala. 232, 29 So. 676).
The court erred in admitting a marriage certificate from Sumter County in evidence (citing sections 4886, 4887, Code 1907, and authorities).
The divorce proceedings relied upon did not authorize Ann Fountain to remarry (citing 139 Ala. 292, 35 So. 884; 173 Ala. 111, 55 So. 632; 200 Ala. 329, 76 So. 102).
The court erred in granting a new trial (citing multiple authorities including 101 Ala. 112, 13 So. 386; 197 Ala. 231, 72 So. 503; 196 Ala. 631, 72 So. 171; 125 Ala. 644, 27 So. 843).

Appellee's Arguments (Annie)

The divorce granted authority to remarry (citing section 3796, Code 1907, and authorities: 20 Ala. 629; 33 Cal. 363; 75 Cal. 213; 34 Ind. 365).

Table of Precedents Cited

Court's Reasoning and Analysis

The court's analysis proceeded in identifiable steps:

Jurisdiction and venue: The court explained that the probate court of Jefferson County is a single court with jurisdiction coextensive with the county. The act of September 16, 1915, which designates Bessemer as a place where the probate court must be held at certain times, affects venue (the place of hearing) rather than the court's subject-matter jurisdiction. The act therefore creates a branch or division for venue purposes but does not create a separate probate court. (Citing the 1915 act and decisions including Board of Revenue v. Huey and others.)
Waiver of venue objection: Because the probate court had subject-matter jurisdiction over appointment of an administratrix and the issuance of letters, any objection to the court's acting at Birmingham instead of Bessemer had to be seasonably raised in the trial court. No timely objection was preserved; therefore, the appellant waived any venue-based objection to the probate court's acting at Birmingham.
Disposition of the new-trial question: The initial hearing produced findings in favor of Emma Hines. The probate court later granted a motion for rehearing/new trial, effectively revoking its December 31 decree. On review of the affidavits and evidence presented in support of the motion for a new trial, the Supreme Court concluded the probate court did not abuse its discretion in granting the new trial.
Findings on retrial and deference to factfinder: On retrial the probate court heard witnesses and resolved factual conflicts, concluding that the decedent was the same person known by both names and that Annie had been validly married to him in 1895 with no legal annulment of that marriage. The Supreme Court deferred to the trial court's opportunity to see and hear witnesses (citing Bell v. Bell) and found no reversible error in the probate court's factual conclusions.
Effect of prior proceedings: The court addressed the prior annulment in Sumter County (1892) which expressly permitted the parties to remarry, noting that a condition that remarriage be permitted only upon payment of costs was void (citing Mickle v. State). The court concluded that Annie's subsequent actions did not defeat her earlier valid marriage to the decedent.

Holding and Implications

Holding: Affirmed.

Implications:

The probate court's order (including its grant of a new trial and its factual findings on retrial that the decedent was the same person known as Sam and Elias and that Annie was his lawful wife) was upheld.
The Supreme Court held that the 1915 statute designating Bessemer as a place to hold probate court affected venue but did not deprive the probate court of county-wide jurisdiction; any objection to venue was waived for failure to reserve it timely in the probate court.
No broader precedent beyond the affirmance of the probate court's decision was announced by the opinion; the direct effect is the validation of the probate court's actions and the appointment consistent with its factual findings.

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HINES v. HINES et al.

McCLELLAN, J.

This appeal brings up for review the action of the probate court of Jefferson county in appointing an administratrix of the estate of Sam or Elias Hines, deceased. The asset of the estate mentioned in the petitions is a claim for damages resulting from the death of the decedent.

On the same date two women filed their respective petitions for appointment as administratrix of the estate. Each averred that she was the widow of the decedent. One, Emma Hines (appellant), gave the decedent, referred to in her petition, the name of Sam Hines; and the other, Annie (appellee), gave the decedent, referred to in her petition, the name of Elias Hines. On December 31, 1918, the probate court, after hearing at Bessemer, in Jefferson county, decided the issues in favor of Emma Hines, declared Emma to be the widow of Sam Hines, deceased, and ordered letters of administration issued to Emma, suspending the issuance of letters until 30 days for appeal by Annie should expire. On January 4, 1919, Annie filed her petition for rehearing of the contest so decided on December 31, 1918; the court's order reciting that "the parties appearing consented that the court should hear the petition in Birmingham," and setting the hearing for January 16, 1919, at Birmingham. On January 16, 1919, the court, "by agreement of counsel," passed the matter to January 27, 1919, "that being the regular court day at Bessemer," in Jefferson county. In the record, over date of January 4, 1919, the attorney for Emma Hines appears to have executed a writing containing this:

"* * * And consent that the same [i. e., the motion for rehearing] be set for hearing before the judge of probate, 17th January, at Birmingham at any time after the 4th day of January, 1919."

The subsequent "agreement of counsel," recited in the court's record under date of January 16, 1919, appears to have annulled the written agreement just above mentioned; the proceeding being then passed to January 27, 1919, at Bessemer. The hearing of the motion for rehearing seems to have taken place at Bessemer on the 27th day of January, 1919, counsel being present. As recited in the order of date January 27, 1919, the court received submission of the matter of the motion for rehearing and the affidavits supporting and opposed thereto, and took the cause under "advisement," and on January 29, 1919, awarded the rehearing or new trial at Birmingham. Appellant insists the probate court was without jurisdiction to make the order granting the new trial at Birmingham; that the court could only perform that judicial function at Bessemer, whereat, under the act approved September 16, 1915 (Gen. Acts, pp. 549-553; Board of Revenue, etc., v. Huey, 195 Ala. 83, 70 So. 744) particularly section 9 thereof, the probate court must be held at stated times (special or adjourned terms thereat being authorized) for the disposition of matters arising within a territorial area surrounding the city of Bessemer. Neither objections to the action taken by the court at Birmingham in this proceeding nor anything else suggestive of the impropriety of taking action at Birmingham, instead of at Bessemer, appears to have been brought to the attention of the probate court.

The act above noted constitutes Bessemer a branch headquarters, away from the county seat at Birmingham, for the purposes therein defined. The probate court is required to be held at Bessemer at certain or otherwise lawfully fixed times. The probate court of Jefferson county has jurisdiction coextensive with the confines of the county. It is a court of general jurisdiction, coextensive with the county, where the appointment of administrators is concerned. The act noted did not effect or intend the creation of two probate courts in Jefferson county. The act's effect was to assign the venue — not the jurisdiction over a subject-matter within the competency of such courts — of matters arising in a defined area to judicial cognizance at Bessemer, thereby establishing at Bessemer a mere branch, department, or division of the single unit, the probate court of Jefferson county. Singleton v. Jackson, 177 Ala. 123, 127, 59 So. 45; Huntsville Gro. Co. v. Johnson, 13 Ala. App. 488, 69 So. 967; Woolf v. McGaugh, 175 Ala. 299, 57 So. 754. As is familiar, consent cannot give jurisdiction of the subject-matter, but venue and jurisdiction of the person may be waived by appearance and participation, unless seasonably raised in the trial court. Authorities supra. Here the Probate Court of Jefferson county had jurisdiction of the subject-matter, viz. the appointment of an administratrix for the estate or estates in question, and the issuance, in consequence of this power, of letters to the person appointed. If the appellant desired to save, and not waive, the objection to the power of the probate judge or court to decide the matter at Birmingham, the county seat, instead of at Bessemer, it should have been reserved in the lower court. The insistence stated cannot be approved. If it possessed merit at all, waiver was effected.

The issues, almost purely of fact, presented by the two petitions, were these: (a) whether Sam or Elias Hines, then lately deceased, was one person; (b) whether Emma or Annie was his lawful wife at the time of his death. Both of these issues were vigorously contested by these parties. On the first hearing the court decided both issues in favor of Emma Hines, who claimed to be the widow of Sam Hines, deceased. Many affidavits were presented for and against the respective contentions of these women. The court granted the new trial moved for, and effectually revoked its former decree or order of December 31, 1918. On the evidence submitted on the hearing of the motion for new trial it cannot be affirmed that the movant was concluded by an absence of proper diligence in the premises. After a careful consideration of the evidence submitted on that hearing, this court is not convinced that error was committed in granting the new trial.

Upon the retrial the court heard many witnesses. While there was conflicting evidence touching the identity of the deceased person, as being either Sam Hines or Elias Hines (two persons), the conclusion prevailing with the trial court, that Sam or Elias was but two names of one person, appears to have been well founded. Indeed, no doubt is entertained on the present record that Elias Hines was this decedent's original name, and that later he was alternately known and called in and about Bessemer by the names of Sam or Elias. Regarding the fact as established that Sam or Elias was one person, it appears to be fairly certainly proven that Annie Williams (the appellee) was married to Elias alias Sam Hines in 1895. It is not shown that this marriage had been legally annulled. The former marriage of Annie to Fountain was effectually annulled in the chancery court of Sumter county, Ala., in 1892; it being expressly provided in the decree that both parties might again contract marriage. The provision of that decree that the parties might again contract marriage on paying the cost of the cause was void. Mickle v. State, 21 So. 66. No prejudicial error resulted from the refusal of the court to admit the record or documents pertaining to the marriage of Ann Williams and Morgan Thomas; the recitals being that this marriage was contracted in 1899, several years subsequent to what appears on this record to have been the valid consummation of a marriage between this decedent and the appellee. If she was validly married to decedent in 1895, the subsequent (in 1899) effort (if so) to marry Morgan Thomas was without effect upon the previous validly contracted relation between Ann and Elias Sam Hines.

The trial court saw and heard the witnesses. Proper observance here of the rule set down in Bell v. Bell, 183 Ala. 645, 62 So. 833, among other decisions, forbids the disturbance of the result attained by the court below.

The order or decree appealed from is not affected with prejudicial error. It is affirmed.

Affirmed.

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.

HINES v. HINES