“Where a court of general jurisdiction has exercised its powers, it will be presumed, unless the contrary appears of record, that all the facts necessary to give the court jurisdiction were duly found, and every step has been taken. Silence of the records of the court will not be sufficient to create a presumption of a want of jurisdiction.”
How later courts described this case
- “Where a court of general jurisdiction has exercised its powers, it will be presumed, unless the contrary appears of record, that all the facts necessary to give the court jurisdiction were duly found, and every step has been taken. Silence of the records of the court will not be sufficient to create a presumption of a want of jurisdiction.”
Written by the judges who cited it.
The opinion
Section 5419 of the Code of 1907 provided that:
"Courts of probate have, in the cases defined by law, original jurisdiction of: * * * (5) The sale and disposition of the real and personal property belonging to, and the distribution of intestates' estates."
Under this statute the probate court was held to be purely statutory and limited, and, in order to invoke its jurisdiction, it was necessary to make the allegations required by statute, failing in which the action of the court was of no effect. Sermon v. Black, 79 Ala. 507 ; Howell v. Hughes, 168 Ala. 460 , 53 So. 105 .
Had the law remained as it was stated in the Code of 1907, the proceeding would be void. But it was changed by the adoption of the Code of 1923. Section 9579 of the Code provides that:
"Courts of probate shall have original and general jurisdiction as to all matters and things mentioned in this section of the Code, * * * and all orders, judgments and decrees of the probate court shall be accorded the same validity and presumption which are accorded to judgments and decrees of other courts of general jurisdiction."
When jurisdiction is vested in a court by statute, the contrary not appearing, such court, although of general jurisdiction as to other matters, is of special jurisdiction as to such statutory authority. Crimm v. Crimm, 211 Ala. 13 , 99 So. 301 ; Tillery v. Tillery, 217 Ala. 142 , 115 So. 27 ; Martin v. Martin, 173 Ala. 106 , 55 So. 632 .
The statute may make a statutory court one of general jurisdiction as to such matters as may be prescribed therein. Ex parte Pruitt, 207 Ala. 261 , 92 So. 426 ; 15 Corpus Juris, 726.
Where a court of general jurisdiction has exercised its powers, it will be presumed, unless the contrary appears of record, that all the facts necessary to give the court jurisdiction were duly found, and every step has been taken. Silence of the records of the court will not be sufficient to create a presumption of a want of jurisdiction. It is only where the face of the record shows a want of jurisdiction will its proceedings be declared void on collateral attack. White v. Simpson, 124 Ala. 238 , 27 So. 297 ; L. N. R. R. Co. v. Tally, 203 Ala. 370 , 83 So. 114 ; 15 Corpus Juris, 827. This has been specifically applied to the probate court as to those matters over which it has general jurisdiction. Carr v. I. C. R. R. Co., 180 Ala. 159 , 60 So. 277 , 43 L.R.A. (N.S.) 634; Acklen v. Goodman, 77 Ala. 521 ; Steele v. Tutwiler, 68 Ala. 107 ; 15 Corpus Juris, 834.
It results from the foregoing that the former opinion in this case did not give consideration to section 9579 of the Code of 1923, to the extent of the difference between it and section 5419 of the Code of 1907. Giving effect to the Code as it now appears, it results that the application for a rehearing should be granted, and the judgment reversed, and judgment rendered denying the motion.
Application granted. Reversed and rendered.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur. *Page 233