In Johnson v. Neal, released October 23, 2009, the Alabama Supreme Court dismissed an appeal from the Macon County Circuit Court for lack of subject matter jurisdiction even though neither of the parties had raised that issue in the trial court.
Homer Osborne died on July 17, 1973. On August 3, 2004, two of his sons petitioned the Macon County Probate Court to probate a will that he had purportedly executed. The petition explained that the existence of the will had been unknown until it had been discovered on August 4, 2003. The will left all of Homer’s property to his three sons. The probate court admitted it to probate. On February 24, 2006, the children of Homer’s first cousin filed a will contest, alleging, among other things, that the petition to probate the will was untimely. On November 20, 2007, the circuit court set aside the probate court’s order admitting the will to probate.
On appeal, Osborne’s sons argued that the circuit court lacked subject matter jurisdiction over the matter so that its order setting aside the probate court’s order was void. Citing section 43-8-19 of the Alabama Code, the sons pointed out that circuit courts were not conferred with jurisdiction to entertain a will contest more than six months after the contested will had been admitted to probate. The will contestants, however, pointed out that the sons had failed to raise that issue before the trial court and had therefore failed to preserve it for appellate review. The Alabama Supreme Court disagreed, pointing out that subject matter jurisdiction could not be waived:
Contrary to the contestants’ argument on appeal, the proponents did not waive the issue of subject-matter jurisdiction by failing to argue it before the circuit court. This Court has specifically held that "a circuit court’s lack of jurisdiction over a will contest can be raised at any time." Therefore, the proponents’ failure to present the issue of subject matter jurisdiction to the circuit court did not waive the issue for appellate review or release this Court from its duty to consider whether the circuit court lacked subject matter jurisdiction over the will contest.
Because section 43-8-199 did not confer subject matter jurisdiction on the circuit court, its judgment setting aside the probate court’s order was void and would not support an appeal.