National Surety Co. v. Rudder

Supreme Court of Alabama

National Surety Co. v. Rudder

144 So. 21, 225 Ala. 549, 1932 Ala. LEXIS 245

CourtSupreme Court of Alabama

DecidedOctober 6, 1932

Docket8 Div. 417.

StatusPublished

This text of 144 So. 21 (National Surety Co. v. Rudder) 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

National Surety Co. v. Rudder, 144 So. 21, 225 Ala. 549, 1932 Ala. LEXIS 245 (Ala. 1932).

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Opinion

ANDERSON, C. J.

This appeal was taken from a decree of the circuit court overruling a demurrer to a petition to the said court, pending the administration of the estate, for the rendition of a decree against the sureties of the executors against whom a decree had been rendered, and for the issuance of an execution against said sureties as one had been issued against the principals and returned no property found.

The petition in question is not such a bill in equity or cross-bill as authorizes an appeal from a ruling on a demurrer thereto as provided by section 6079 of the Code of 1923, and this appeal must be dismissed. It is sufficient to suggest, however, that an appeal was taken in the main case, which has been this day affirmed, and the trial court has the power to render a decree against the surety and order execution upon a return of the execution nulla bona against the principals. Section 6052 of the Code; Steele v. Graves, 68 Ala. 17; Martin v. Tally, 72 Ala. 30. This rule or statute is applicable to the administration of estates in chancery as well as the probate court.

Appeal dismissed;

GARDNER, THOMAS, and FOSTER, JJ., ! concur.

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ANDERSON, C. J.

This appeal was taken from a decree of the circuit court overruling a demurrer to a petition to the said court, pending the administration of the estate, for the rendition of a decree against the sureties of the executors against whom a decree had been rendered, and for the issuance of an execution against said sureties as one had been issued against the principals and returned no property found.

The petition in question is not such a bill in equity or cross-bill as authorizes an appeal from a ruling on a demurrer thereto as provided by section 6079 of the Code of 1923, and this appeal must be dismissed. It is sufficient to suggest, however, that an appeal was taken in the main case, which has been this day affirmed, and the trial court has the power to render a decree against the surety and order execution upon a return of the execution nulla bona against the principals. Section 6052 of the Code; Steele v. Graves, 68 Ala. 17; Martin v. Tally, 72 Ala. 30. This rule or statute is applicable to the administration of estates in chancery as well as the probate court.

Appeal dismissed;

GARDNER, THOMAS, and FOSTER, JJ., ! concur.

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Bluebook (online)

144 So. 21, 225 Ala. 549, 1932 Ala. LEXIS 245, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-surety-co-v-rudder-ala-1932.

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