Mobbs v. Scott
| Decision Date | 11 June 1936 |
| Docket Number | 8 Div. 677 |
| Citation | 233 Ala. 70,169 So. 698 |
| Parties | MOBBS v. SCOTT. |
| Court | Alabama Supreme Court |
Rehearing Denied Oct. 8, 1936
Appeal from Circuit Court, Marshall County; A.E. Hawkins, Judge.
Petition of Vera Mobbs for removal of administration of the estate of Zora Scott, deceased, from the probate court to the circuit court in equity, resisted by Martin Scott. From a decree setting aside an order of removal, complainant appeals.
Affirmed.
Street & Bradford, of Guntersville, and Thos. E. Orr, of Albertville, for appellant.
H.G Bailey, of Boaz, for appellee.
On the petition of appellant, verified by oath, filed on the 17th day of May, 1934, the circuit court ordered the removal of the administration of the estate of Zora T. Scott from the probate court to the circuit court, in equity, for further administration and final settlement.
There is an absence of averment in the petition showing that the probate court had not assumed jurisdiction and was proceeding to a final settlement of said estate when the petition of appellant was filed.
On June 5, 1934, the appellee filed an answer to said petition questioning the jurisdiction of the circuit court to proceed alleging that at the time the same was filed and said order removing said administration was made, the probate court had assumed jurisdiction to bring said estate to a final settlement, and proceedings to that end were then pending in the probate court, and moved that the order removing said administration be set aside and vacated.
The record of the probate court supporting the averments of said answer, the circuit court granted the motion, vacated the order of removal, and dismissed the petition. From that order the petitioner has appealed.
The petition appears to have been filed under section 6478 of the Code. It is settled that said statute Ex parte McLendon (Mealey v. Bartlett et al., etc.), 212 Ala. 403, 405, 102 So. 696, 698
.
It appears from the record before us that the order removing the administration of the estate from the probate court to the circuit court,...
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Ex parte Pettus
... ... not the ouster of jurisdiction of the probate court where ... that court has entered upon its jurisdiction for a final ... settlement. Mobbs v. Scott, 233 Ala. 70, 169 So ... 698; Ex parte McLendon, 212 Ala. 403, 102 So. 696; ... Gardner v. Gardner, 244 Ala. 107, 11 So.2d 852 ... ...
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Ex parte Clayton
...occurs once the probate court has taken steps toward a final settlement, or has, in fact, made a final settlement. Mobbs v. Scott, 233 Ala. 70, 169 So. 698 (1936); Ex parte McLendon, 212 Ala. 403, 102 So. 696 (1924). Nonetheless, this rule does not apply if the probate court lacks the autho......
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Beam v. Taylor
...removed from the probate court to the circuit court at any time before a final settlement thereof”); see also, e.g., Mobbs v. Scott, 233 Ala. 70, 71, 169 So. 698, 699 (1936) (stating, in regard to the precursor to § 12–11–41 : “It is settled that said statute ‘does not contemplate “the oust......
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Crossland v. First Nat. Bank
...court. Ex parte McLendon, 212 Ala. 403, 102 So. 696; Brizendine v. American Trust & Savings Bank, 211 Ala. 694, 101 So. 618; Mobbs v. Scott (Ala.Sup.) 169 So. 698. But is contended that although the bill may be prima facie sufficient in that respect, this court will, as did the circuit cour......