Maclin, adm'r ad litem for Brotherton v. Congo, [Ms. 2110546, Sept. 7, 2012] __ So. 3d __ (Ala. Civ. App. 2012). In 2007,
a vehicle driven by Ronald Brotherton, a Missouri resident, collided in
Alabama with a vehicle driven by Justin Congo. Brotherton died before
Congo brought suit on May 26, 2009. A limited appearance for suggesting
death, contesting service, and moving to quash was entered. The trial
court granted the motion to quash. Congo thereafter moved for appointment
of an administrator ad litem pursuant to Rule 25, Ala. R. Civ. P., and
¤ 43-2-250, Ala. Code 1975. After a jury verdict awarding damages
to Congo, the administrator ad litem appealed. The Court of Civil Appeals
dismisses the appeal on the ground that "[p]roceedings instituted
against an individual who is deceased at the time the action is filed
are a nullity and do not invoke the trial court's jurisdiction."
The action against Brotherton "was therefore void
ab initio." The trial court was therefore without jurisdiction, its judgment
was void, and the void judgment would not support an appeal. The Court
therefore dismissed the appeal "with instructions to the trial court
to vacate its void judgment and orders."
Note: the Court of Civil Appeals relies on its earlier opinion of
A.E. v. M.C., [Ms. 2101154, Apr. 13, 2012] __ So. 3d ___ (Ala. Civ. App. 2012), in
which a father sued the deceased mother of his child four years after
her death for a judgment awarding custody to the father. In neither case
does the Court of Civil Appeals address the proper scope of ¤ 43-2-250,
which contemplates the appointment of an administrator ad litem to serve
as a defendant where the person who might otherwise be a defendant is deceased.