Opinion
6 Div. 300.
May 19, 1921.
Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.
Burgin Jenkins, of Birmingham, for appellants.
The case of Rensford v. Magnus Co. fully sustains all our contentions that the demurrers should have been sustained. 150 Ala. 288, 43 So. 853.
Arthur L. Brown, of Birmingham, for appellee.
Counsel relies on the case cited by appellants for an affirmance of the decree overruling the demurrers.
On October 2, 1916, the complainant, appellee, filed this bill, against the appellant and others, as a judgment, and also a contract creditor of James L. Gilbert, deceased. By consent, the respondents other than this appellant were eliminated. The original bill sought the removal of the administration of Gilbert's estate from the probate to the chancery court. After much sporadic activity in the cause, on the apparent assumption that the administration had in some way become removed from the probate to the chancery court, the complainant amended her bill (on January 14, 1921), by the addition thereto of paragraphs A to G, inclusive, as well as another prayer for removal of the administration, and for relief by way of discovery and enforced satisfaction of a demand that does not appear to be the same demand as that or as those described in the original bill. Nothing was taken out of the original bill by this amendment. The respondent demurred to the bill as amended on these grounds: A want of equity; departure from the original bill wrought by the introduction of the amendment; that only through conclusions of the pleader is it shown that the probate court had not entered upon a final settlement of the estate.
The court overruled the demurrer. This was proper under the authority of Rensford v. Magnus, 150 Ala. 288, 43 So. 853. Originally and as amended, the bill filed by a creditor possessed equity, and so without regard to the presence or absence of a special equity. The amendment was not a substitute for the original bill, it but added matter thereto. It struck therefrom no material averment. The allegation negativing the entry of the probate court upon final settlement of the estate was an affirmation of fact, not a conclusion of the pleader. The demurrer was, as stated, properly overruled. The decree is affirmed.
Affirmed.
ANDERSON, C. J. and SOMERVILLE and THOMAS, JJ., concur.