Wommock v. Davis
| Decision Date | 22 March 1934 |
| Docket Number | 6 Div. 531. |
| Citation | 153 So. 611,228 Ala. 362 |
| Parties | WOMMOCK v. DAVIS et al. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.
Action by G. T. Davis and another, as administrators of the estate of J. B. Busby, deceased, against Bessie Wommock. Judgment for the plaintiffs, and the defendant appeals.
Transferred from Court of Appeals.
Reversed and the cause remanded.
J. B Ivey, of Birmingham, for appellant.
H. M Abercrombie and Jarrett Abercrombie, both of Birmingham, for appellees.
Suit in detinue, trover, and upon common counts, brought by appellees, as administrators of the estate of J. B. Busby, deceased, against the appellant, the widow of the deceased.
Each of the counts of the complaint was in the form prescribed by the Code, and therefore they were not subject to any grounds of the defendant's demurrer. The appellant can therefore take nothing by her assignments of error predicated upon the supposed insufficiency of the several counts.
It is insisted that the court committed error in sustaining plaintiffs' demurrer to pleas B, C, D, E, and 1, as addressed to count 2 of the complaint, which was for the conversion of certain personal property. Confessedly, there was no error in sustaining the demurrer to plea A, for this plea was not the general issue, as it purported to be, to an action for conversion, and, besides, plea F, the general issue, to count 2-conversion count-was in the case. Likewise pleas B and C were not appropriate to a conversion count.
Pleas D and H were each defective in attempting to set up in bar of the suit expenditures and payments made by the defendant, some of which were unauthorized, and for which she was not entitled to reimbursement from the estate. However, the demurrer directed to these pleas did not, in any of its grounds, point out this defect in the pleas, and the court committed error in sustaining the same. The statute forbids the consideration of any objection to pleading which is not distinctly stated in the demurrer. Code, § 9474; L. & N. R. R. Co. v. Cowley, et al., 164 Ala. 331, 50 So. 1015; Sibley v. Hutchison, 218 Ala. 441, 118 So. 638; Snow v. Cleveland Lumber Co., 224 Ala. 564, 141 So. 243; Buell v. Miller, 224 Ala. 566, 141 So. 223.
Plea E was defective in not averring that the court of probate of Jefferson county acquired jurisdiction of the subject-matter, and also in not setting forth the proceedings and decree to show that the matters and things involved in said count 2 had been adjudicated and settled in favor of the defendant. But the demurrer did not take this point, and the court committed error in sustaining the demurrer as for any grounds assigned therein. However, this ruling involved no injury to the defendant, as the decree of the probate court referred to in said plea was introduced in evidence thereafter by the defendant, and it did not support defendant's said plea. On the contrary, the decree affirmatively shows to the contrary.
Plea 1 presented an immaterial issue as applied to count 2.
On the trial of the cause, numerous exceptions were reserved by the defendant on admission and exclusion of evidence.
The court gave at the written request of the plaintiffs the general affirmative charge under count 1 of the complaint, as to the "property disclaimed." However, the jury disregarded this charge, and also failed to render any verdict for plaintiffs under the detinue count, but did render a verdict for the plaintiffs under some other count of the complaint-the count not being disclosed by the verdict-for the sum of $909.25. Whether this verdict was intended to respond to the conversion count, or to one of the ex contractu counts, the record does not disclose.
The court, on objection of the plaintiffs, refused to permit the defendant to prove that she had, prior to the appointment of the plaintiffs as administrators of her deceased husband's estate, paid out some of the money of the estate, in her hands, in the payment of the funeral expenses and expenses of the last illness of her husband.
We entertain no...
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Douglas v. King
...are debts of a decedent and are properly charged against the decedent's estate." 816 So.2d at 25. As explained in Wommock v. Davis, 228 Ala. 362, 153 So. 611 (1934), cited in Whited, burial expenses paid during the statutorily prescribed moratorium on appointing an administrator (now 5 days......
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Whited v. Holmes
...See also Gilbreath v. Levi, 270 Ala. 413, 119 So.2d 210 (1959); Canada v. Canada, 243 Ala. 109, 8 So.2d 846 (1942); and Wommock v. Davis, 228 Ala. 362, 153 So. 611 (1934). The trial transcript contains the following exchange between Holmes's attorney and Whited concerning the proceeds of th......
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Canada v. Canada
...other debts of decedent are to be paid in the order indicated. Kennedy et al. v. Parks, 217 Ala. 323, 116 So. 161. In Wommock v. Davis et al., 228 Ala. 362, 153 So. 611, it was held that the widow of decedent was authorized to reasonable expenditures of decedent's money to defray burial exp......
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Terry v. Gresham
...it, so far as he has assets.' Gayle's Adm'r v. Johnston, 72 Ala. 254, 257; Page v. Skinner, 220 Ala. 302, 125 So. 36; Wommock v. Davis, 228 Ala. 362, 153 So. 611. We quote from the opinion of the court in Gayle's Adm'r v. Johnston, supra: 'The burial, of necessity, here devolves as a duty u......