Mayer v. Kornegay

• Decision Date: 14 November 1907
• Citation: 44 So. 839,152 Ala. 650
• Parties: MAYER v. KORNEGAY ET AL.
• Court: Alabama Supreme Court

44 So. 839

152 Ala. 650

MAYER v. KORNEGAY ET AL.

Supreme Court of Alabama

November 14, 1907

Appeal from Probate Court, Marengo County; A. L. Hasty, Judge.

Petition by Morris Mayer, administrator of the estate of Allen Kornegay, for the sale of land of his intestate for the payment of debts. The petition was contested by Thornton Kornegay and others, heirs of Allen Kornegay. From a decree dismissing the petition, the administrator appeals. Affirmed.

Morris Mayer, as administrator of the estate of Allen Kornegay filed his petition, containing the necessary statutory averments, seeking the sale of certain lands belonging to his intestate for the payment of the debts of said estate. In contestation of the application the heirs filed the following plea: "That the application should be denied and a decree rendered dismissing such petition on the following ground, to wit: That on the 11th day of December, 1903 Mayer, as administrator of the estate of Allen Kornegay deceased, filed a petition in the probate court of Marengo county, Ala., which petition was in words and figures as follows: [Here follows a copy of the petition.] That on the 13th day of March, 1905, the said Mayer duly appeared by his attorney of record, and the minor heirs and Evaline Kornegay who is of unsound mind, were duly represented by B. F Gilder, as guardian ad litem, and the contestants were duly represented by their attorney of record, and a trial was had in said cause, and the probate court rendered the following decree, which is in words and figures as follows: [Here follows a copy of the decree dismissing the petition for failure of the administrator to show that the personal property belonging to the estate was not sufficient to pay the debts of said estate, and for a failure to show that it was necessary to sell the said lands for the payment of the debts.] And contestants aver that the parties are the same as in the present application, except that Ruffin Kornegay has since died without issue; that the said probate court of Marengo county, Ala., is a court of competent jurisdiction in such cases, and at the time had jurisdiction of the matters involved in said cause of action; that the decree rendered dismissing the said cause out of said court was rendered after the merits of said cause had been considered by the court; that said application sought to have sold the same land for the payment of debts as in the present application. And contestants aver that at the time the debts claimed to be owing by said Kornegay, deceased, were a debt due Mayer Bros and a debt due John C. Webb, and that the said debt now claimed to be due by the said Kornegay, deceased, is the same debt due John C. Webb, which debt the said Webb has since that time reduced to a judgment, and the debt claimed to be due and owing the said Mayer Bros. has been transferred to one J. F. Compton, who has reduced the same to judgment. And contestants aver that these are the same debts that were claimed to be due and owing when said former trial was had on the 13th day of March, 1905, and were in issue at said former trial." The guardian ad litem filed a plea of similar import. The following demurrers were interposed to the pleas: "(1) Because it shows on its face that the judgment of the court rendered March 13, 1905, was not a final judgment on the merits. (2) Because it shows on its face that the judgment on March 13, 1905, was a judgment of dismissal only, and not a final judgment. (3) Because it shows on its face that the judgment on March 13, 1905, is a nonsuit, and not pleadable as res adjudicata. (4) Because it shows on its face that the judgment of March 13, 1905, was on the facts as presented at the time of trial, that the fact not proven was the failure to show 'that the personal property was not sufficient to pay the debts of said estate,' and that this failure applied only to the time of trial, and does not apply to the time of filing of this application. (5) Because said plea...