Ragland v. King's Adm'r

37 Ala. 80 | Ala. | 1860

R. W. WALKER, J.

The questions-which aris'e in this ease are identical with those which have been considered and determined in the case of Ragland v. Calhoun’s' Adm’r, (36 Ala. 606,) except that, in addition to the defenses urged by the.sureties in the latter case, the, petitioners here assail the order for tire appointment of Spence as administrator cíe bonis non of King, as void, upon the ground that Mrs* King, the‘original administratrix, had neither died, resigned, nor been removed, and that her administration was therefore still outstanding when Spence was appointed* Although there is no formal order for tile removal of Mrs* King, yet the facts necessary to sustain such an order are recited in the minutes, as the reason for the grant of administration to Spence 5 and with the view of sustaining the -second grant of administration,' When-- cottatemBy- assailed, we think it is proper to consider the action of the court as amounting-to-'the removal of'the administratrix. If the validity of the subsequent proceeding could, not be -otherwise upheld,- we would consider the record as having been amended, seas to show a regular order of removal. Speight v. Knight, 11 Ala. 461; McLauren v. Thompson, Dudley’s Law R. 335 ; State v. Mays, 24 Ala. 204.

Decree affirmed.

A. J. Walker, C. J., not sitting.