Tucker v. Morris

• Decision Date: 19 May 1921
• Docket Number: 6 Div. 300
• Citation: Tucker v. Morris, 206 Ala. 123, 89 So. 271 (Ala. 1921)
• Court: Alabama Supreme Court
• Parties: TUCKER et al. v. MORRIS.

89 So. 271

206 Ala. 123

TUCKER et al. v. MORRIS.

6 Div. 300

Supreme Court of Alabama

May 19, 1921

Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.

Bill by Eula R. Morris against Ada May Tucker, as administratrix of the estate of James L. Gilbert, and others, to remove the administration from the probate to the chancery court, for an accounting and the collection of a judgment and another claim against the estate. From a decree overruling demurrers to the bill as amended, respondents appeal. Affirmed.

Burgin & Jenkins, of Birmingham, for appellants.

Arthur L. Brown, of Birmingham, for appellee.

McCLELLAN J.

On October 2, 1916, the complainant, appellee, filed this bill against the appellant and others, as a judgment, and also a contract creditor of James L. Gilbert, deceased. By consent the respondents other than this appellant were eliminated. The original bill sought the removal of the administration of Gilbert's estate from the probate to the chancery court. After much sporadic activity in the cause, on the apparent assumption that the administration had in some way become removed from the probate to the chancery court, the complainant amended her bill (on January 14, 1921), by the addition thereto of paragraphs A to G, inclusive, as well as another prayer for removal of the administration, and for relief by way of discovery and enforced satisfaction of a demand that does not appear to be the same demand as that or as those described in the original bill. Nothing was taken out of the original bill by this amendment. The respondent demurred to the bill as amended on these grounds: A want of equity; departure from the original bill wrought by the introduction of the amendment; that only through conclusions of the pleader is it...