Knabe v. Rice

• Decision Date: 15 May 1895
• Citation: 17 So. 666,106 Ala. 516
• Parties: KNABE v. RICE ET AL.
• Court: Alabama Supreme Court

17 So. 666

106 Ala. 516

KNABE v. RICE ET AL.

Supreme Court of Alabama

May 15, 1895

Appeal from chancery court, Montgomery county; Jere W. Williams Chancellor.

Action by J. P. Knabe against W. P. Rice and others to enjoin the enforcement of an execution. A demurrer to the bill was sustained, and plaintiff appeals. Affirmed.

Joseph Silva was the tenant of appellee W. P. Rice, and died intestate. At the time of his death said Silva was indebted to said Rice for unpaid rent. The appellant, J. P. Knabe qualified as administrator of the estate of Joseph Silva deceased, in the probate court of Montgomery county. The claim of Rice was properly filed against the estate of Silva within the time prescribed by law, and on the final settlement of the estate in the probate court the claim was allowed, and a decree rendered against the administrator, J P. Knabe, for the amount thereof. Execution was issued on this decree, and levied on certain property of said Knabe. Knabe & Scott (real-estate firm, of which J. P. Knabe, in his individual capacity, was a member) then filed a bill in the chancery court of Montgomery county to enjoin the sale of the property of Knabe levied on under the decree of the probate court against him as administrator of Silva's estate. A temporary injunction was obtained, which, on motion of appellee, was thereafter dissolved, and the bill dismissed. Appellee then caused said decree to be duly certified to the probate court by the register in the manner prescribed by section 3529 of the Code, and execution was thereupon issued by the clerk of the probate court against Knabe & Scott and their co-obligors on the injunction bond. The present bill is filed by J. P. Knabe to enjoin the enforcement of the execution issued by the clerk of the probate court on the certified copy of the decree of the chancellor against the obligors on the injunction bond filed by Knabe & Scott in the suit above referred to. The bill alleges that prior to the final settlement by Knabe of his administration of the Silva estate, the said Knabe, as such administrator, had turned over the money due Rice from said estate to Knabe & Scott under an agreement made between Knabe & Scott and Rice, by which the latter agreed that Knabe, as administrator of the estate of Silva, deceased, should turn over to said firm the money received by him from the Silva estate, as an indemnity against any liability by reason of their having become sureties on a certain bond theretofore executed by said Rice. The bill further alleges that the...