Tygh v. Dolan

• Decision Date: 07 April 1892
• Citation: 95 Ala. 269,10 So. 837
• Parties: TYGH ET AL. v. DOLAN.
• Court: Alabama Supreme Court

10 So. 837

95 Ala. 269

TYGH ET AL. v. DOLAN.

Supreme Court of Alabama

April 7, 1892

Appeal from probate court, Mobile county; PRICE WILLIAMS, Judge.

Mary Dolan filed an application in the probate court wherein she represented that her husband, Thomas Dolan, died without leaving a homestead exempt to her, and that he left other property, out of which she claimed the right to have property assigned to her in lieu of homestead exemption, and prayed the court to appoint commissioners as provided by law. Thereafter commissioners were appointed, and set apart certain property to her as exempt, in lieu of homestead. Within the time prescribed by law, Mary Tygh and others objected to said allotment, and filed exceptions to the report of the commissioners, and the same were set for hearing before the judge of the probate court. Afterwards the widow filed a plea to the jurisdiction, for the reason that jurisdiction had been assumed by the chancery court of the settlement of the estate of Thomas Dolan, deceased, including the hearing of said exceptions. A motion to strike the plea from the file was overruled, as was also a demurrer to the plea. Issue was joined on the replication to the plea, and the court, after hearing the evidence, sustained the plea and refused to hear the exceptions. Mary Tygh and others appeal. Affirmed.

W E. Richardson and Thos. H. Smith, for appellants.

H Taylor, for appellee.

MCCLELLAN J.

It cannot be doubted that the plea to the jurisdiction of the probate court was sufficient to present the issue whether the chancery court had taken jurisdiction of the administration of Thomas Dolan's estate. All that is necessary to such a plea, we apprehend, is that it should state the facts that a bill invoking the jurisdiction of the chancery court has been filed therein, and that court has assumed the exercise of such jurisdiction. Whether the bill to that end is sufficient is a question which properly arises on the trial of the plea. It cannot be necessary that such plea should set out the bill in extenso; and to hold the plea here insufficient would logically lead to such requirement There was no error in the rulings of the lower court on the motion and demurrers, which were addressed to the sufficiency of the plea.

The only other action of the probate court which this record presents for review is its judgment sustaining the plea on the evidence. And the only argument made against...