Ex parte Taylor

• Decision Date: 27 December 1945
• Docket Number: 3 Div. 437.
• Parties: Ex parte TAYLOR.
• Court: Alabama Supreme Court

24 So.2d 217

247 Ala. 308

Ex parte TAYLOR.

3 Div. 437.

Supreme Court of Alabama

December 27, 1945

Ralph A. Clark, of Andalusia, and D. M. Powell, of Greenville, for petitioner.

Calvin Poole and T. W. Thagard, both of Greenville, for respondent.

LIVINGSTON Justice.

Original petition in this Court for the writ of mandamus to be directed to Hon. Arthur E. Gamble, as Judge of the Second Judicial Circuit in and for Butler County, Alabama, in equity, requiring him to receive submission of demurrers filed in the case of Velvia C. Taylor versus Jodie B. Lee et al.

In substance the petition shows the following facts: One Jefferson F. Taylor died intestate on to-wit, October 7 1944, leaving an estate consisting of personal property and real estate in Butler County, Alabama. He left surviving the following heirs and distributees: Jesse Benjamin Taylor and William Harris Taylor, adult sons who are in military service of the United States; Cora Doris Hooks, a married minor daughter over the age of nineteen years; James Jefferson Taylor, a minor son over fourteen years of age, and Leon Franklin Taylor, a minor son under fourteen years of age. Said minors have no legal guardian. On October 13, 1944, the Probate Court of Butler County, Alabama, appointed Jodie B Lee administrator of the estate of Jefferson F. Taylor deceased.

On to-wit, December 14, 1944, Velvia C. Taylor filed her bill of complaint in the Circuit Court of Butler County, in equity against Jodie B. Lee, individually and as administrator of the estate of Jefferson F. Taylor, deceased, Jesse Benjamin Taylor, William Harris Taylor, Cora Doris Hooks, James Jefferson Taylor, Leon Franklin Taylor, and Velvia Frances Taylor. In said bill she alleged that the respondent Jodie B. Lee had been appointed administrator of the estate of Jefferson F. Taylor, deceased, and that the administration of said estate had been removed from the probate court to the circuit court, in equity; that the other respondents were the children, heirs and distributees of Jefferson F. Taylor, deceased; that she, the complainant Velvia C. Taylor, was the common law wife of Jefferson F. Taylor, deceased. The bill prayed for the setting aside of homestead and personal property exemptions allowed to the widow and minor children under the laws of this State; the allotment of dower to the widow, and that complainant be permitted to occupy the dwelling house and farm of the deceased free from the payment of rent, until her dower is assigned.

T. W. Thagard was duly appointed guardian ad litem for the respondent James Jefferson Taylor, a minor.

On to-wit, January 15, 1945, the respondent Jodie B. Lee, individually and as administrator

of the estate of Jefferson F. Taylor, deceased, filed demurrers to the bill of complaint. On the same day T. W. Thagard, as guardian ad litem for James Jefferson Taylor, a minor, filed demurrers to the bill of complaint.

On May 24, 1945, Velvia C. Taylor, through her solicitors, gave notice to the solicitors of Jodie B. Lee, individually and as administrator of the estate of Jefferson F. Taylor, deceased, and to T. W. Thagard, as guardian ad litem of James Jefferson Taylor, a minor, that the demurrers interposed by them to the original bill would be submitted for decree to the Hon. Arthur E. Gamble, Judge of the Second Judicial Circuit, sitting in equity, in the office of the register of the circuit court, in equity, in the courthouse in Greenville, Alabama, on Tuesday, the 5th day of June, 1945, at ten o'clock A. M.

On June 5, 1945, the solicitors for Jodie B. Lee, individually and as administrator of the estate of Jefferson F. Taylor, deceased, and T. W. Thagard, as guardian ad litem for James Jefferson Taylor, a minor, appeared in court at the time and place appointed--the Hon. Arthur E. Gamble, judge of said court being present. Said solicitors and guardian thereupon respectively filed objections to the hearing of said demurrers and moved the court for a continuance thereof. The basis for the objection and motion to continue was that respondents Jesse Benjamin Taylor and William Harris Taylor, who were in the United States Army, and Leon Franklin Taylor, a minor, had not been served with process, and as to them the cause was not at issue; and, further, that it would be manifestly unfair to the two respondents in the armed services to pass upon the merits of the bill without giving them an opportunity to test the sufficiency of the same and to be heard in their own behalf. The court entered an order sustaining the objection and granting the continuance. To vacate and set aside that order, and to have this Court require Hon. Arthur E. Gamble to receive the submission of the demurrers and to hear and decree upon the same, this petition for mandamus was filed.

Equity Rule 60, as amended by this Court on June 10, 1943 (Title 7, 1943 Cumulative Pocket Part, page 88) provides:

'Whenever a cause is at issue, any plaintiff or any defendant may have the cause set down for final submission at such time and place in the circuit as the court or judge may determine. Notice of the application for setting the cause shall be given either by the sheriff or by the movant or his attorney of record to all parties against whom a decree pro confesso has not been lawfully rendered.

'And submission may also be had on demurrer, motion, or other pleading upon ten days' notice to the opposing party or parties. Such notice may be given either by the sheriff or by the movant or his attorney of record.'

The last paragraph of Rule 60, as set out above, constitutes the amendment of the rule adopted by this Court on June 10, 1943. Prior to the...