McGathey v. Thompson

• Decision Date: 05 November 1931
• Docket Number: 7 Div. 54.
• Parties: MCGATHEY v. THOMPSON ET AL.
• Court: Alabama Supreme Court

138 So. 841

224 Ala. 163

MCGATHEY v. THOMPSON ET AL.

7 Div. 54.

Supreme Court of Alabama

November 5, 1931

Rehearing Denied Jan. 21, 1932.

Appeal from Circuit Court, Calhoun County; W. B. Merrill, Judge.

Bill in the nature of a bill of review by Leo McGathey, by his next friend, N. J. Hudgens, against C. N. Thompson, individually and as administrator of the estate of Violet Hammett deceased, J. N. Hammett, and Little McGathey. From a decree dismissing the bill, complainant appeals.

Affirmed.

Bibb Field & Woolf, of Anniston, for appellant.

Merrill Jones & Whiteside, of Anniston, for appellees.

BROWN J.

This is a bill in the nature of a bill of review seeking to set aside, revoke, and annul a decree of the court in which the bill is filed, rendered on the petition of complainant's mother, Violet Hammett, who was also his guardian, relieving him from the disabilities of nonage. The mother died prior to the filing of the bill, and her administrator, the sureties on her guardian's bond, and Little McGathey, a minor, and a ward of said guardianship, are made parties defendant.

The petition to remove the disabilities of nonage was filed March 7, 1927, under subdivision 1 of section 8280 of the Code alleging that the petitioner "is the mother of Leo McGathey, who is a minor over the age of eighteen years, residing with your petitioner in Calhoun County, State of Alabama; that the father of said minor is dead, and your petitioner is the mother and legal guardian of said minor."

The proceedings appear to be regular on their face, and show that a copy of the petition was served on the complainant and notice of publication given, as required by section 8282 of the Code. The petition was not resisted, and the decree removing the disabilities of nonage was granted on the 11th day of April, 1927, on the affidavit of the petitioner stating, inter alia, that "said minor was eighteen years of age July the 14th, 1926, and will be nineteen years of age on July the 14th, 1927. I think it will be to the best interest that the disabilities of non-age be removed. Said minor is the owner of Four Hundred and Fifty Dollars in money, now on deposit in the Farmer's and Merchant's Bank of Piedmont, Alabama, and is not the owner of any other property. He possesses a good moral character and has a reasonably good education, and is industrious. He is now employed as a farmer, and I think he is entirely capable of managing his own property and business affairs, and that it will be to the best interest that he be allowed to manage the same himself. He is not extravagant."

This affidavit was taken and filed with the register of the circuit court on March 7, 1927, the day the petition was filed.

The bill avers that the complainant was born on the 14th day of July, 1909; that at the time his mother, the said Violet Hammett, filed said petition to remove his disabilities of nonage, she "knew that your orator was under the age of eighteen years, and your orator avers that said decree was obtained by fraud, in that said Violet Hammett falsely and knowingly represented to the court that your orator was over the age of eighteen years, and led the court to believe that this was the case." (Italics supplied.)

The equity of the bill, which prays that the decree removing the disabilities of nonage of the complainant be vacated and annulled, and for general relief, was upheld on demurrer. We are of opinion that this ruling was amply justified by the following decisions of this court. Keenum et al. v. Dodson et al., 212 Ala. 146, 102 So. 230; Lester et al. v. Stroud et al., 212 Ala. 635, 103 So. 692.

The minor defendant was duly represented by guardian ad litem of the appointment of the court, who denied the averments of the bill. The adult defendants also answered, denying the material averments of the bill, and specifically denying the allegation of fraud charged in the bill.

The case being submitted for final decree on the pleadings and proof, a decree was entered dismissing the bill, and from that decree the complainant prosecutes this appeal.

Appellant's first contention is that the case should be reviewed here without any presumption in favor of the conclusion of the trial court on the facts arising from the fact that the testimony was taken ore tenus, and heard by the trial judge.

The reasons, stated in argument, underlying this contention, are first, that although the decree recites "the court having considered and heard the testimony orally and having heard the argument of attorneys both orally and in writing, the court is of opinion that, under the testimony and under the authorities cited in arguments of said case, and especially under the authority of Hutchinson v. Till, 212 Ala. page 64, 101 So. 676, 677, that complainant is not entitled to the relief prayed for," it appears that the court dismissed the bill on the mistaken idea that it was without equity, and not for failure of proof.

It must be conceded that nothing said in Hutchinson v. Till, supra in any way militates against the equity of the bill in this case. That was not a proceeding by the minor to have his...