Gamble v. Kellum

Decision Date21 November 1892
Citation12 So. 82,97 Ala. 677
CourtAlabama Supreme Court

Appeal from circuit court, Henry county; J. M. Carmichael, Judge.

Suit by Eliza Kellum against J. M. Gamble, administrator, and others. Judgment for plaintiff. Defendants appeal. Reversed.

When several defendants are sued, judgment may be rendered against one or more, and in favor of the others. Code, § 2609; Steed v. Barnhill, 71 Ala. 157; Burns v Moore, 76 Ala. 339; Neff v. Edwards, 81 Ala 247, 2 South. Rep. 88; Handley v. Lawley, 90 Ala 527, 8 South. Rep. 101.

J. G Cowan, for appellants.

Walker & Espy, for appellee.


The first assignment of error brings for review the ruling of the court on the demurrer to the complaint. Appellee sues, as the widow of Elijah Kellum, to recover a debt alleged to be due by defendants to her deceased husband. For the purpose of showing her title to the debt, and her right to maintain the action, the complaint avers that her husband was a resident of this state; that he did not own personal property exceeding in value $1,000; that no administration has been granted upon his estate, and no personal property set apart to her as exempt from administration and debts. The suit, having been commenced before the Code of 1886 went into effect, is brought under, and by virtue of, the provisions of the fourth section of "An act to set apart to widows and minors the property exempt from administration and debts, without any administration thereon," approved February 12, 1885. Acts 1884-85, p. 114. The section provides "that until such setting apart or administration the widow, or, if there be no widow, then the guardian of such minor child or children, may use the exempted property as now authorized by law, and, if necessary, sue for and recover the same, or any part thereof, and may bring suit therefor as a regularly appointed administrator or guardian might do." The mode of such "setting apart" is provided by the first section of the act, as amended by an act approved February 28, 1887. When the husband does not own personal property exceeding the amount exempted, if 60 days have elapsed since his death without the grant of administration, the judge of probate must, upon the application of the widow, appoint two commissioners to set apart the property exempted. Acts 1886-87, p. 112.

The question raised by the demurrer is whether, under the fourth section, when compared with the other sections of the act, no personal property having been set apart in the mode provided and there being no administration, the widow is authorized to sue for the exempt property after the expiration of 60 days from the death of her husband. The purpose of a selection is to separate the exempt property from the mass of the personal property of the deceased, thereby withdrawing it from administration, and attaching thereto the right of exemption. While, whether or not the personal property exceeds in value $1,000, a selection must be made in one of the statutory modes, when there is an administration, yet a valid selection may be made, when there is no personal representative, sufficient to pass the title to the particular property selected, without pursuing any formal mode. When the property does not exceed in value $1,000, and there is no administration, a selection is unnecessary. The right of exemption, in such case, attaches to the entire personal property, absolutely and unconditionally. Possession, retention, and use constitute a sufficient selection. Mitcham v. Moore, 73 Ala. 542; Bell v. Hall, 76 Ala. 546; James v. Clark, 89 Ala. 606, 7 South. Rep. 161. The statute could not have been intended to prevent, when the conditions mentioned therein exist, the right of exemption from attaching to the property, unless set apart in the particular mode provided. The same section declared the operation and effect of the statute, when the mode pointed out for having the property set apart as exempt is pursued. That se...

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27 cases
  • Bagnell Timber Co. v. Missouri, Kansas & Texas R. Co.
    • United States
    • Missouri Supreme Court
    • March 17, 1904
    ...Faulkner v. Faulkner, 73 Mo. 327; Munn v. Haynes, 46 Mich. 140, 9 N.W. 136; Hudson v. Emmons, 107 Mich. 549, 65 N.W. 542; Gamble v. Kellum, 97 Ala. 677, 12 So. 82; v. Fortenbury, 15 Colo. 129, 25 P. 163; Palmer v. Lavigne, 104 Cal. 30, 37 P. 775; Lee v. Wimberly, 102 Ala. 539, 15 So. 444; G......
  • Handley v. Shaffer
    • United States
    • Alabama Supreme Court
    • May 30, 1912
    ...against either of them. The probatum does not support the allegatum, and the variance is fatal to any right of recovery. Gamble v. Kellum, 97 Ala. 677, 12 So. 82; Lee v. Wimberly, 102 Ala. 539, 15 So. Garrison v. Hawkins Lumber Co., 111 Ala. 308, 20 So. 427. It is clear, therefore, that pla......
  • Rentz v. Live Oak Bank
    • United States
    • Florida Supreme Court
    • June 6, 1911
    ... ... which does not correspond with the allegations in the ... pleadings, and tend to prove the issues. Malsby v ... Gamble, 61 Fla. ----, 54 So. 766, and prior decisions of ... this court there cited. This action is brought against the ... defendants Rentz, Little, ... 275, 39 ... So. 61; Tomlinson v. Peninsular N. S. Co., 55 So ... 548, decided this term. See 9 Cyc. 755; Gamble v ... Kellum, 97 Ala. 677, 12 So. 82; Cobb v. Keith, ... 110 Ala. 614, 18 So. 325; Garrison v. Hawkins Lumber ... Co., 111 Ala. 308, 20 So. 427; Smythe v ... ...
  • Reifschneider v. Beck
    • United States
    • Missouri Court of Appeals
    • May 31, 1910
    ... ... 477; Bank v. Campbell, 34 ... Mo.App. 45; Hempstead v. Stone, 2 Mo. 65; Erwin ... v. Devine, 24 Ky. (J. J. Marsh), 204; Gamble v ... Kellum, 97 Ala. 677; Black v. Struthers, 11 ... Iowa 459; Murray v. Davis, 6 Jones (N. C.) 341; ... Thompson v. Tenn., 100 Ga. 234; ... ...
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