Strange v. Gunn

Supreme Court of Alabama

Strange v. Gunn

56 Ala. 611

DecidedDecember 15, 1876

StatusPublished

This text of 56 Ala. 611 (Strange v. Gunn) 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

Strange v. Gunn, 56 Ala. 611 (Ala. 1876).

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Opinion

STONE, J.

The proceeding in this case is purely statutory. — -Bev. Code, §§ 3105, et seq. Section 3105, under which the petition was filed, is made up of section 2677 of the Code of 1852, and the act “ to enlarge the jurisdiction of the Probate Courts of the several counties of this State,” approved February 8, 1858 — .Pamph. Acts, p. 252. Construing the section of the Code in the light of said statute, we think it was permissible to institute the proceeding in the name of the infant by next friend, or in the name of the guardian of the infant, at the option of the pleader. — Bev. Code, § 2526.

2. We think, however, that the property sought to be divided is not sufficiently described. “A certain law library, consisting of about fifteen hundred volumes of text books and reports,” is the description given in the petition. This is too general and indefinite. It must be so described, as that an issue can be formed on the allegation of joint or common ownership; that testimony can be adduced, and an intelligent decree rendered on such allegation and issue; and that the commissioners appointed may know precisely what they are required to divide or partition between the parties interested. Less than this will leave them without the information and means necessary to perform the service required of them. — Bev. Code, §§ 3108, et seq.

Decree of the Probate Court affirmed.

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STONE, J.

The proceeding in this case is purely statutory. — -Bev. Code, §§ 3105, et seq. Section 3105, under which the petition was filed, is made up of section 2677 of the Code of 1852, and the act “ to enlarge the jurisdiction of the Probate Courts of the several counties of this State,” approved February 8, 1858 — .Pamph. Acts, p. 252. Construing the section of the Code in the light of said statute, we think it was permissible to institute the proceeding in the name of the infant by next friend, or in the name of the guardian of the infant, at the option of the pleader. — Bev. Code, § 2526.

2. We think, however, that the property sought to be divided is not sufficiently described. “A certain law library, consisting of about fifteen hundred volumes of text books and reports,” is the description given in the petition. This is too general and indefinite. It must be so described, as that an issue can be formed on the allegation of joint or common ownership; that testimony can be adduced, and an intelligent decree rendered on such allegation and issue; and that the commissioners appointed may know precisely what they are required to divide or partition between the parties interested. Less than this will leave them without the information and means necessary to perform the service required of them. — Bev. Code, §§ 3108, et seq.

Decree of the Probate Court affirmed.

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Bluebook (online)

56 Ala. 611, Counsel Stack Legal Research, https://law.counselstack.com/opinion/strange-v-gunn-ala-1876.