The case was placed upon the rehearing docket by the writer, who concurred in the opinion, after time for rehearing had expired. This action was not without precedent.
See Hendley et al. v. First National Bank of Huntsville,235 Ala. 664, 180 So. 667; Id., 234 Ala. 535, 176 So. 348.
The reason for this course was that the writer was, and still is, of opinion that the holding of said original opinion that one named as beneficiary in a will filed for probate has a right as a person interested to contest such will or attached codicil pursuant to Code 1923, § 10625, was in direct conflict with the interpretation of the statute in Braasch et al. v. Worthington et al., 191 Ala. 210, 67 So. 1003, Ann.Cas.1917C, 903, reaffirmed in Allen et al. v. Pugh,206 Ala. 10, 89 So. 470, to the effect that the right given by said statute, then § 6196 of the Code of 1907, was only to such as have a direct legal interest in the estate which will be injuriously affected by the establishment of the will. See Braasch et al. v. Worthington et al., supra.
On further examination of the record I find that this question was not raised on the trial nor passed upon by the Probate Court, and is therefore not raised on the record.
The record shows the following proceedings in the Probate Court: The appellee, Joseph J. Bain, named in the last will of Samuel M. Hendricks as the executor thereof, on the 14th of September, 1938, filed in said court a petition to probate the will in due form. On the same day the court entered an order fixing the 8th day of October, 1938, for hearing said petition, and ordered notices to issue to the widow and next of kin named in the petition as heirs at law, and said notices were duly given.
On the day set for hearing Lila Bussey, named as one of the next of kin, appeared and, alleging that she was a person named in the will, filed a declaration of contest embodying six pleas, and setting forth in said several pleas facts in bar of the probate of the codicil to said will, and demanded a trial by jury. The court ordered the pleas filed, fixed another day for hearing and ordered a jury summoned.
On the day fixed for trial the appellant, Romania Baker, not joining in the pending contest, filed a separate declaration of contest embodying the same pleas as interposed by Lila Bussey, demanding that the contest be transferred to the Circuit Court for trial. The court on written motion of the proponent struck the separate contest of Baker from the file.
Thereafter Bussey withdrew her contest, and Baker verbally requested permission to refile her pleas, and the court denied permission to Baker to refile her said pleas.
The appeal, or rather attempted appeal, is on the record without a bill of exceptions and, to quote from the statement of appeal, is "from said order dismissing her contest, and also from the order of the Court refusing to allow her to refile her contest after the contest of the said Lila Bussey had been dismissed and before any testimony was taken in the case."
Conceding the efficacy of the appeal to review the ruling of the court granting appellee's motion made in writing, to strike appellant's grounds of contest, which are but pleas in bar to the petition to probate the codicil to the will [Coghill v. Kennedy, 119 Ala. 641, 24 So. 459], the ruling of the Probate Court was supported by the holding in Allen et al. v. Pugh, supra, and was free from error.
In the case last cited, it was observed: "Where one person has filed a contest, others so entitled must become contestants, if at all, by making themselves parties to thecontest pending, since the issue is in rem, and must be single and complete as to all the parties. Rainey v. Ridgway, 148 Ala. 524,41 So. 632." [Italics supplied.] *Page 623
The declination by the court to permit the refiling of the grounds of contest is not within the influence of § 9459, and is not reviewable on the record without a bill of exceptions. Huntsville Knitting Mills v. Butner, 200 Ala. 288, 76 So. 54.
I am of opinion, however, that the orders appealed from will not support the appeal. As before stated, the grounds of contest are but pleas in bar to the petition to probate, and it requires no authority to support the conclusion that the striking of a plea is not a final judgment which will support an appeal. The question is jurisdictional. Bell v. King,210 Ala. 557, 98 So. 796; State ex rel. Garrow et al. v. Grayson, Judge, 220 Ala. 12, 123 So. 573; Osborn v. Robertson Tire Auto Co., 15 Ala. App. 358, 73 So. 229.
After appellant's pleas were stricken she had the right to join in the pending contest.
I am of opinion that the rehearing should be granted, and the appeal dismissed.