Fischer v. Pope, 6 Div. 404.
| Decision Date | 10 May 1934 |
| Docket Number | 6 Div. 404. |
| Citation | 229 Ala. 170,155 So. 579 |
| Parties | FISCHER v. POPE et al. |
| Court | Alabama Supreme Court |
Rehearing Denied June 28, 1934.
Appeal from Circuit Court, Cullman County; W. W. Callahan, Judge.
Bill by O. V. Pope and others, minors suing by their next friend, J U. Pope, against Oscar Fischer, as administrator of the estate of Pearl Pope, deceased, to require final settlement of the administration. From the decree, respondent appeals.
Modified and affirmed.
W Marvin Scott, of Cullman, for appellant.
St John & St. John, of Cullman, and A. J. Harris, of Decatur for appellees.
The appeal is from a final decree in equity on settlement of the administration of an estate.
Both parties here suggest there was no note of testimony on submission pursuant to Chancery Rule 75. They differ as to whether, in the circumstances of this case, such omission should work a reversal or an affirmance of the decree.
The decree recites: "This cause coming on to be heard is submitted to the court for final decree by the consent of the parties in open court upon pleadings and proof heretofore noted by the Register."
The record discloses a note of testimony made on a former submission for final decree, which was followed by further pleadings filed, reopening a report of the register which had been confirmed for limited purposes, and a second note of testimony made upon the latter reference. We think the above recital of record, that these notes of testimony of record were by agreement used on this hearing, was the equivalent of renoting and reentry under the rules, and the appeal will be so considered.
The sole estate of decedent, Pearl Pope, consisted of a claim for death by wrongful act under Code, § 5696.
In the same accident, a collision of an automobile with a wagon in which decedent was riding, other occupants received personal injuries.
Oscar Pope, husband of decedent, was first appointed administrator of her estate. He and other parties injured joined in employment of the same counsel to collect damages.
After much effort and outlay in expenses, much of it in an effort to extradite the alleged wrongdoer, H. T. Kitson, a compromise settlement of all claims was had with the insurance carrier, who paid over to counsel for claimants a lump sum of $6,750 in satisfaction and release of all demands. Meantime, appellant had succeeded to the position of administrator, by consent of all parties at interest.
In settlement with their counsel, after deducting counsel fees and other charges, a balance of $2,078.10 was, by common consent, paid over to appellant as administrator in full settlement with counsel, and a release given by the administrator, Oscar Pope, the surviving husband, and representatives of the other parties injured.
The distributees of the estate consisted of the surviving husband, and five minor children. This bill was filed by these children by next friend to remove the administration to the equity court and make final settlement.
The trial court, following the report of the register, theretofore made and confirmed, charged the administrator with $3,375, one-half the sum collected by his counsel, less the sum of $692.03, being one-third the amount actually paid over to him, and ascertained to be due the other parties injured.
Without going into a discussion of the various phases of the evidence, we conclude, and so hold, that the evidence supports...
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Price v. Southern Ry. Co.
...action are held by the administrator as a special trust fund for the statutory distributees. Hicks v. Barrett, 40 Ala. 291; Fischer v. Pope, 229 Ala. 170, 155 So. 579, Ivey v. Wiggins, supra, Holt v. Stollenwerck, supra [174 Ala. 213, 56 So. In view of the fact that the personal representat......
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Heath v. United States
...of Knox County, 33 Ohio App. 539, 169 N.E. 709; Cincinnati Street Railway v. Altemeier, 60 Ohio St. 10, 53 N.E. 300. 15 Fischer v. Pope, 229 Ala. 170, 155 So. 579; McWhorter Transfer Co. v. Peck, 232 Ala. 143, 167 So. 16 The deceased left surviving him no children or their descendants, no f......
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Petersen v. Kemper
...by a personal representative of the deceased for the recovery of damages. Fetty v. Carroll, 118 W. Va. 401, 190 SE 683; Fischer v. Pope, 229 Ala. 170, 155 So. 579; Mattoon Gas Light & Coke Co. v. Dolan, 105 Ill. App. 1; Wenholz v. New Amsterdam Casualty Co., La. App., 181 So. 222; Hampton v......
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