Opinion
2 Div. 62.
December 19, 1935.
Appeal from Circuit Court, Wilcox County; John Miller, Judge.
P. E. Jones, of Camden, for appellant.
In view of the decision, it is not necessary that brief be here set out.
Bonner Bonner, of Camden, for appellee.
No error being assigned, the judgment will be affirmed. Supreme Court Rule 1; Halle v. Brooks, 209 Ala. 486, 96 So. 341. It was necessary that errors be assigned on appeal from the probate court to the circuit court. The assignment of errors on that appeal does not obviate the necessity of assigning errors on this appeal. Truett v. Woodham, 98 Ala. 604, 13 So. 519; Massey v. Reynolds, 213 Ala. 178, 104 So. 494.
The submission here is on motion and merits. The motion, of which appellant appears to have had notice, is to affirm for a want of assignments of error. The motion is well taken. No assignments of error in this court are made to appear.
The cause involved a contest of a will, and upon the trial in the probate court before the judge without a jury, there was a decree entered rejecting the will upon the ground of mental incapacity of the testator. From the judgment, the proponent prosecuted his appeal to the circuit court, as authorized by the statute. Section 6115, Code 1923.
Errors were assigned on said appeal to the circuit court, and bill of exceptions duly reserved. Truett v. Woodham, 98 Ala. 604, 13 So. 519; Ex parte Sumlin, 204 Ala. 376, 85 So. 810; McKnight v. Pate, 214 Ala. 163, 106 So. 691.
The circuit court in reviewing such appeal affirmed the decree of the probate court, and from this judgment the appeal was prosecuted to this court. Section 6116, Code 1923; authorities supra.
Upon submission here, rule I, Supreme Court Practice, required that appellant here assign errors, and for his failure so to do, the judgment is due to be affirmed. Nichols v. Hardegree, 202 Ala. 132, 79 So. 598.
It is so ordered.
Affirmed.
THOMAS, BROWN, and KNIGHT, JJ., concur.