Mobbs v. Scott

Supreme Court of Alabama

Mobbs v. Scott

169 So. 698, 233 Ala. 70, 1936 Ala. LEXIS 345

CourtSupreme Court of Alabama

DecidedJune 11, 1936

Docket8 Div. 677.

StatusPublished

Cited by6 cases

This text of 169 So. 698 (Mobbs v. Scott) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mobbs v. Scott, 169 So. 698, 233 Ala. 70, 1936 Ala. LEXIS 345 (Ala. 1936).

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Opinion

BROWN, Justice.

On the petition of appellant, verified by oath, filed on the 17th day of May, 1934, the circuit court ordered the remóval 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.

*71 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 “does not contemplate ‘the ouster of the jurisdiction of the probate courts, where that court has actually entered upon the exercise of its jurisdiction in and for a final settlement of estates.’ * * * The words ‘at any time beiore a final settlement,’ found in the removal act, mean before proceedings for settlement begin, not before they are completed.” 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, in equity, was improvidently granted. It follows therefore that the circuit court properly vacated the order of removal and dismissed the petition.

Affirmed.

ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.

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BROWN, Justice.

On the petition of appellant, verified by oath, filed on the 17th day of May, 1934, the circuit court ordered the remóval 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.

*71 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 “does not contemplate ‘the ouster of the jurisdiction of the probate courts, where that court has actually entered upon the exercise of its jurisdiction in and for a final settlement of estates.’ * * * The words ‘at any time beiore a final settlement,’ found in the removal act, mean before proceedings for settlement begin, not before they are completed.” 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, in equity, was improvidently granted. It follows therefore that the circuit court properly vacated the order of removal and dismissed the petition.

Affirmed.

ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.

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Bluebook (online)

169 So. 698, 233 Ala. 70, 1936 Ala. LEXIS 345, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mobbs-v-scott-ala-1936.

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