APPENDIX II TO RULES 4 THROUGH 4.4:

STATUTES MODIFIED

The following statutes are to be applied in courts subject to the Alabama Rules of Civil Procedure only as herein amended:

Title 13, Sec. 138 Proceedings on Administration of Estates in Circuit Court. In the administration of estates in the circuit court, or court of like jurisdiction, in this state, such court, in the exercise of such jurisdiction, shall proceed according to the Alabama Rules of Civil Procedure and shall, where necessary, permit service by publication in the matter provided for publication in said rules, without regard to any of the statutory requirements provided for administration of estates in the probate court; and shall have power to appoint personal representatives in cases pending in the circuit court in cases of vacancy.

Committee Comments

The statute as originally drawn served the primary purpose of avoiding strict statutory requirements applicable to probate court. Dent v. Foy, 206 Ala. 454, 90 So. 317. In its original version, it authorized the circuit court to proceed according to its own rules. Since the abrogation of the Equity Rules and in view of Rule 4.3, Service by Publication, wherein publication is available in situations where historically publication was permitted under earlier equity practice, this statute has been amended to codify the propriety of the use of service by publication in proceedings on administration of estates in circuit court.

Title 34, Sec. 23 Mode of Proceeding in Divorce Suits. The proceeding must, in all respects, be conducted as other suits in equity, except as herein otherwise directed. The cause for which the divorce is sought must be alleged in the bill, to which the other party must be made defendant; and service by publication shall be made, when necessary, in the manner provided in the Alabama Rules of Civil Procedure. In making his decree in the cause, the judge shall, as the evidence and the nature of the cause may warrant, direct whether the party against whom a decree of divorce is made be permitted to marry again, and where, in decrees hereafter rendered no order is made disallowing the party the right to marry again, the party shall be deemed to have the right, and in cases where the right is affirmatively disallowed to the divorced party to remarry, it shall be competent for the judge, upon petition and proper proof, to allow the petitioner to marry again, as justice may seem to require.

Committee Comments

Under former practice, service by publication has historically been made available in divorce proceedings. The statutory basis for such action was formed in Title 34, Sec. 23, as originally drawn. This statute has been modified only so as to make clear that service by publication in a divorce proceeding continues to be available in light of the revision of the rules governing service of process.

Title 47, Sec. 186 Jurisdiction of Circuit Court to Divide or Sell for Division. The circuit court shall have original jurisdiction to divide or partition, or sell for partition, any property, real or personal, held by joint owners or tenants in common; whether the defendant denies the title of the plaintiff or sets up adverse possession or not; and the court in exercising its jurisdiction shall proceed according to the Alabama Rules of Civil Procedure and, where necessary, allow service of process by publication as prescribed therein.

Committee Comments

This section applies to partition in equity and a predecessor version simply made service by publication available by general reference to the applicability of rules of practice in equity cases. In view of the present structuring of Rule 4.3 wherein service by publication is not available except in areas where such service has been historically permitted in claims involving property under the control of the court, this statute has been modified so as to make clear that service by publication is anticipated as an available method of service in a partition proceeding.