Ex parte Bell
| Decision Date | 29 May 1930 |
| Docket Number | 4 Div. 494. |
| Citation | 221 Ala. 304,128 So. 594 |
| Parties | EX PARTE BELL. |
| Court | Alabama Supreme Court |
Petition of Fred Bell for mandamus to Hon. J. S. Williams, as Judge of the Circuit Court of Barbour County.
Mandamus awarded.
The petition alleges that petitioner is a son of John T. Bell deceased, the administration of whose estate is pending in the probate court of Barbour county; that petitioner, as an heir at law of said decedent, filed a petition in the circuit court for removal of the administration from the probate court to the circuit court in equity; that the circuit judge made an order removing said administration, but directing the probate court not to surrender the file or papers pertaining to the estate until payment of such costs as may have accrued in the probate court. It is prayed that writ of mandamus issue to the respondent judge, requiring him to enter an order for removal of said administration without qualification as to payment of costs.
Guy W Winn, of Clayton, for petitioner.
J. S Williams, of Clayton, pro se.
The statute for the removal of the administration of an estate from the probate court to the circuit court "at any time before a final settlement," by one of the parties in interest indicated, "without assigning any special equity," is section 6478, Code. Hinson v. Naugher, 207 Ala. 592, 594, 93 So. 560.
The pleading in equity to that end should be sufficient in form and substance to transfer the said pending cause from the probate to the circuit court in equity, and to invest the latter with the jurisdiction and power to proceed with the administration to final settlement, according to the due procedure in a court of equity. In the case of Hinson v. Naugher, supra, the bill, alleging the jurisdictional facts, was original in form, duly verified. Such was the form employed in Helms v. Helms, 214 Ala. 580, 108 So. 509; Dent v. Foy, 210 Ala. 475, 98 So. 390; Henderson v. Henderson, 210 Ala. 73, 97 So. 353; Fowlkes v. Clay, 205 Ala. 523, 88 So. 651; Manfredo v. Manfredo, 182 Ala. 247, 62 So. 522; Ex parte McLendon, 212 Ala. 403, 405, 102 So. 696; McKeithen v. Rich, 204 Ala. 588, 86 So. 377, and authorities. The case of Dooley v. Dooley, 205 Ala. 281, 87 So. 545, states the bill or petition for removal must be duly sworn to and "contain an averment the equivalent of statutory requirement."
The paper exhibited was informal in character. The trial judge has,...
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Ex parte Pettus
...being presented for probate, and cases where the administration of decedent's estate is involved. The former cases are: Ex parte Bell, 221 Ala. 304, 128 So. 594; Little v. Burgess, 240 Ala. 552, 200 So. Bynum v. Brewer, 217 Ala. 52, 114 So. 577; Dillard v. Gill, 231 Ala. 662, 166 So. 430. T......
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Culp v. Godwin
...13, § 139 gives her that right as a matter of law, and without any condition annexed thereto as to payment of costs. Ex parte Bell, 221 Ala. 304, 128 So. 594 (1930). The order of removal was therefore On the other hand, when a judgment on a claim against an estate has been rendered, either ......
- State v. Wiggins, 1 Div. 610.