Berry v. Perry
Supreme Court of Alabama
Appeal from the Probate Court of Greene. Heard before the Hon. W. C. Oliver. The appellant, M. F. Berry, as executor of the will of Thos. T. Tyree, deceased, filed October 9, 1886, a motion in the Probate Court of Greene county, to quash an execution against said decedent as one of the sureties on the bond of T. C. Clark, as administrator of the estate of Z. T. Eubanks, deceased.
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Appeal from the Probate Court of Greene. Heard before the Hon. W. C. Oliver. The appellant, M. F. Berry, as executor of the will of Thos. T. Tyree, deceased, filed October 9, 1886, a motion in the Probate Court of Greene county, to quash an execution against said decedent as one of the sureties on the bond of T. C. Clark, as administrator of the estate of Z. T. Eubanks, deceased. The execution was in favor of the appellee, A. G. Perry, as administrator of the estate of W. H. Knott, deceased, and was issued January 22,1886, under section 2619, Code of 1876. On the same Say an execution against…
1Opinion of the CourtSomebyille, J.
— 1. Tlie execution against Clark, the administrator, was made returnable to the second Monday in April, 1886. It was actually returned “no property found ” by the sheriff on January 22d, 1886, or nearly two months earlier than the return day. On the same day (January 22d), an execution was issued against the administrator and his sureties, under the provisions of § 2619 of the Code (1876). It is held by some of the authorities that where a defendant in execution has no property subject to the process, and the officer is willing to assume the onus of establishing this fact, he need not hold…
2Cases cited2 opinions
- Steele v. TutwilerSupreme Court of Alabama · 1880
- Henderson v. Henderson's Adm'rSupreme Court of Alabama · 1880
3Cited by1 opinion
- Ex Parte McDanalAlabama Court of Appeals · 1946