Lovette v. Springer

444 So. 2d 850 (1984)

Lavenia LOVETTE v. Valorie SPRINGER.

82-424.

Supreme Court of Alabama.

January 20, 1984.

*851 William L. Utsey and William R. Christopher, Butler, for appellant.

Edward P. Turner, Jr., Chatom, for appellee.

ALMON, Justice.

Lavenia Lovette, the widow of the intestate Virgil G. Lovette, appeals from the circuit court order setting aside the probate court decree of final settlement which granted Lavenia the fee simple title to certain real estate situated in Choctaw County, Alabama.

Section 12-22-21(5), Code 1975, provides that the aggrieved party may appeal to the circuit court within 42 days after any order, judgment or decree of the probate court pursuant to a final settlement. On April 19, 1977, the probate court entered its decree of final settlement granting Lavenia the fee simple title to certain real estate included in her husband Virgil's estate. On October 2, 1977, more than 42 days after this probate decree, Valorie Springer, the daughter of Virgil, and the party aggrieved by the probate court order in favor of her mother, filed notice of appeal to the Choctaw Circuit Court. Because the appeal was untimely, the circuit court was without jurisdiction to hear the case. Therefore, the judgment setting aside the probate court order was coram non judice and void. See Bowe v. Pierson, 206 Ala. 250, 89 So. 711 (1921).

The appeal to this Court from a void judgment is due to be dismissed. Alabama State Bar v. Watson, 289 Ala. 729, 272 So. 2d 240 (1972).

APPEAL DISMISSED.

TORBERT, C.J., and FAULKNER, EMBRY and ADAMS, JJ., concur.