Blackman v. Davis

42 Ala. 184

• Court: Supreme Court of Alabama
• Decided: January 15, 1868
• Status: Published

Opinion

BYRD, J.

The appellee is not authorized by section 1698 of the Code to make an application for the removal of an administrator. Such an application should be filed in the name of the wards. If the subject were governed by section 2036, the petition here would not be conformable to it, for the application is not by the guardian for the use of the ward. Indeed, the names of the wards are not even stated. It is, really, a mere application by a guardian. "We think, however, that the proper mode of proceeding for infants in this case, is in the name of the infants by the guardians or next friend, by analogy to the rules of chancery practicó, and that section 2036 does- not apply. The court erred in not sustaining the demurrer,-and not dismissing the petition.

The motion to dismiss the application should have been granted. Hence the action of the court below on this motion must be reversed and a decree here rendered dismissing the application in the court below ; and the appellee must pay the costs of the court below and of this court.

Eeversed and remanded.