Gavin v. Hughes, 8 Div. 345.

• Decision Date: 17 April 1947
• Docket Number: 8 Div. 345.
• Citation: 30 So.2d 245,249 Ala. 126
• Court: Alabama Supreme Court
• Parties: GAVIN v. HUGHES.

30 So.2d 245

249 Ala. 126

GAVIN v. HUGHES.

8 Div. 345.

Supreme Court of Alabama

April 17, 1947

W H. Key, Jr., of Russellville, for appellant.

Wm Stell, of Russellville, for appellee.

LIVINGSTON Justice.

The appeal is from a decree of the Circuit Court of Franklin County, in equity, allowing and ordering paid a claim filed against the estate of Charles R. Burgess, deceased, the administration of which has been before this Court before. Little v. Sugg, 243 Ala. 196, 8 So.2d 866; Little v. Burgess, et al., 244 Ala. 447, 13 So.2d 761; Little v. Gavin, 245 Ala. 252, 16 So.2d 873.

After the death of Burgess, Thomas M. Hughes, a great nephew, filed his claim against the estate of Burgess as for work and labor done for him during his lifetime. The claim was divided into three separate items as follows:

'1--For services rendered decedent from about February 9th, 1940 to April 5th, 1940 at $7 per day $372.00

'2--For services rendered decedent for the months of October 1939 to February 9th, 1940 at $75 per month $375.00

'3--For services rendered decedent from April 5th 1940 to September 16, 1940 $650.00.'

Appellant the administrator of the estate of Burgess, denied all liability on the claim. The administration of the estate having been removed to the circuit court, in equity, the parties agreed to a reference before the register for a determination of the claim's validity. After a hearing on testimony taken ore tenus before the register, he allowed item one of the claim, and denied items two and three, and so reported to the trial court. Both parties filed exceptions to the register's report, the appellee as to items two and three, and the appellant as to item one. The trial court overruled appellant's exceptions as to item one of the claim, and sustained appellee's exceptions as to items two and three of the claim, and rendered judgment accordingly. In other words, the trial court allowed appellee's claim in full as filed, except as to a clerical error which is not here important. This judgment was dated August 8, 1945. Motion for a new trial was made on September 7, 1945, and overruled by the court on October 6, 1945. This appeal by the administrator was perfected on October 19, 1945.

The cause was submitted here on the merits, and on appellee's motion to dismiss the appeal on the ground that it was not perfected within 30 days from the rendition of the judgment as provided by section 216, title 61, Code of 1940.

The motion to dismiss the appeal is not well taken. The appeal is from the decree of August 8, 1945, and not from the decree overruling appellant's motion for a rehearing. The time in which an appeal must be taken, as provided for in section 216, title 61, Code of 1940, was suspended pending the ruling on the application for a rehearing. Equity Rule 62, Appendix title 7, Code of 1940, pages 1097, 1098. The statute and rule must be read in pari materia. See, also, Money v. Galloway, et al., 236 Ala. 55, 181 So. 252.

We have noted above, that the trial court vacated in part the report of the register relative to the claim here involved. The burden her is on appellant to show error and injury resulting from such vacation, but he is aided in this by the usual presumption in favor of the register's report, based on testimony taken ore tenus before him, which has the weight of the verdict of a jury. Sumner v. Caldwell, 244 Ala. 149, 12 So.2d 391.

In the final analysis, the question here presented is one of fact.

Nowhere in the record is it denied that appellee performed the...