Court of Civil Appeals Reviews Probate Appeal From Circuit Court

 The Court of Civil Appeals addressed two issues in probate appeals.  Section 12-22-21(1) of the Alabama Code, the court first held, allows direct appeals from non-final judgments of both the probate and circuit courts.  The circuit court’s non-final summary judgment therefore did not need to be certified under Rule 54(b).  Moreover, once a probate case is removed to circuit court, exclusive jurisdiction remains in the circuit court for as long as the case is pending there.  The appellant thus could not have appealed from a probate court order that was void for lack of subject matter jurisdiction.  Brown v. Brown, No. 2080018 (Ala. Civ. App. Apr. 24, 2009).

This is a will contest in which the Court of Civil Appeals permitted the direct appeal of a non-final summary judgment of the circuit court.  For context, and especially for discussing the second of the two issues limned above, it will be useful to set out some relevant dates.

The decedent’s wife petitioned the probate court to probate her husband’s will.  Her son filed a contest to that will, also in the probate court.  The son then moved to remove the case to circuit court; on November 1, 2007, the case was so removed.  On May 23, 2008, the circuit court entered a summary judgment in the wife’s favor.  It ordered the probate court to admit the will to probate.  The probate court entered an order doing so on May 27, 2008.  The son then filed a motion to alter, amend or vacate the summary judgment in the circuit court; the court did not rule on this motion, which was consequently denied by operation of law on September 2, 2008.  From that denial the son appealed.


The Court of Civil Appeals initially remanded the case back to the circuit court so that the summary judgment could be certified as “final” under Rule 54(b).  The appellate court later held that this remand had been unnecessary and a mistake.

Section 12-22-21(1) of the Alabama Code permits direct appeal from a probate court’s non-final order on a contest to the validity of a will.  Though the statute does not address circuit courts, Alabama has “traditionally treated such orders of the circuit court as though they were orders of the probate court.”  Accordingly, the son could appeal directly from the circuit court’s summary judgment on his will contest.  The Rule 54(b) certification was not needed to confer appellate jurisdiction.


The court then addressed the wife’s motion to dismiss the appeal.  According to her, the son should have appealed, not from the circuit court’s summary judgment, but from the probate court’s order of May 27, admitting the will to probate.

The appellate court disagreed.  The son could not have appealed from that order because the probate court lacked jurisdiction to enter it.  Once the case was removed to circuit court (on November 1, 2007), the probate court lost jurisdiction of the matter, and exclusive jurisdiction rested in the circuit court.  A circuit court can retransfer the case back to probate court, but the circuit court had not done so here.  (This, despite the fact that the circuit court plainly did order the probate court to admit the will.)  In fact, in its order on remand, the circuit court indicated that the case “remain[ed] pending” before it.  The probate court thus lacked jurisdiction to enter the May 27 order, which was consequently void.  The son could not have appealed from the void order, but correctly did appeal from the circuit court’s summary judgment — or, more precisely, from the automatic denial of his motion to alter, amend, or vacate that summary judgment.

The Court of Civil Appeals proceeded to address and affirm the decision of the circuit court.