Mitchell v. Duncan

Decision Date17 December 1891
Citation94 Ala. 192,10 So. 331
PartiesMITCHELL ET AL. v. DUNCAN.
CourtAlabama Supreme Court

Appeal from probate court, Madison county; THOMAS, J. TAYLOR, Judge.

This is a motion by William T. Duncan to dismiss an appeal taken by Ralph Mitchell and others from an order appointing the said Duncan administrator of the estate of Charles E. Harris deceased. Appeal dismissed.

Wm. Richardson and Robt. E. Spragins, for appellant.

D D. Shelby and Wm. L. Clay, for appellees.

WALKER J.

Charles E. Harris died on the 5th day of December, 1889, leaving property in Madison county, in this state. On the 13th day of the same month, certain persons, describing themselves as heirs at law of said decedent, filed a petition in the probate court of said county praying that letters of administration upon the estate of the decedent be issued to Ralph Mitchell, who was one of the petitioners. So far as the record discloses, it does not appear that any order was made upon that petition. On the 15th day of March, 1890, Sallie W Carroll, who had joined in the first petition, filed another petition in her own name alone, asking that William P. Duncan be appointed administrator of the estate of said decedent. On the 4th of April, 1890, Duncan was appointed administrator. On the 19th day of June thereafter, Ralph Mitchell and others, describing themselves as heirs at law, filed another petition, praying that the letters of administration issued to Duncan be revoked and recalled, and that letters of administration be granted to Ralph Mitchell, in accordance with the application of December 13, 1889 to this effect. On July 8, 1890, an order was made overruling and denying this last petition. The appeal from that order was taken January 9, 1891. A motion has been made in behalf of the appellees to dismiss the appeal because it was not taken within 30 days after the date of the order or decree sought to be reviewed.

The contention of the appellants is that Duncan, who did not belong to either of the classes of persons entitled to priority in the grant of administration, should not have been appointed administrator while the application for the appointment of Mitchell, who is an heir at law of the decedent, was pending in that court, and had not been disposed of; that application having been made within 40 days after the death of the intestate. Code 1886, §§ 2014, 2016. The claim is that the right of preference asserted by...

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3 cases
  • Holmes v. Holmes
    • United States
    • Alabama Supreme Court
    • June 14, 1923
    ... ... the statute (Liverpool & London & Globe Ins. Co. v ... Lowe, 208 Ala. 12, 93 So. 765; Mitchell v ... Duncan, 94 Ala. 192, 10 So. 331; Code 1907, § 2855 et ... seq.), and, if not so perfected, is subject to be dismissed ... on proper ... ...
  • Johnston v. Pierson
    • United States
    • Alabama Supreme Court
    • June 21, 1934
    ...as provided by subdiv. 2 of section 6115, Code. Mitchell v. Duncan, 94 Ala. 192, 10 So. 331; Dunham v. Roberts, 27 Ala. 701. In Mitchell v. Duncan, supra, the legal status was the same here. There was no claim that under these circumstances an appeal would not lie, but the holding was that ......
  • Bogacki v. Welch
    • United States
    • Alabama Supreme Court
    • December 17, 1891

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