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Rush v. Rush

Alabama Court of Civil Appeals

September 5, 2014

Charles Edward Rush
v.
Christopher Rush

Released for Publication May 15, 2015.

As Amended October 16, 2014.

Page 363

Appeal from Marshall Circuit Court. (CV-09-414). F. Timothy Riley, Trial Judge.

For Appellant: Norma M. Wells, Albertville.

For Appellee: Dave Beuoy, Burke, Beuoy & Maze, PC, Arab; Amy Scott Wasyluka, Capshaw.

DONALDSON, Judge. Thompson, P.J., and Pittman and Moore, JJ., concur. Thomas, J., concurs in the result, without writing.

OPINION

Page 364

DONALDSON, Judge.

Charles Edward Rush (" Edward" ) appeals from a judgment of the Marshall Circuit Court (" the circuit court" ) appointing Christopher Rush (" Chris" ) and Rhona Rush as co-guardians of Nell Rush, appointing Chris as conservator of Nell's estate, and denying all relief requested by Edward.[1] The case was purportedly removed to the circuit court from the Marshall Probate Court (" the probate court" ); however, the removal was not accomplished in accordance with § 26-2-2, Ala. Code 1975, and, thus, the circuit court did not acquire subject-matter jurisdiction to enter the judgment. Therefore, we dismiss the appeal.

Facts and Procedural History

Only a brief recitation of the facts and procedural history is necessary. Nell is Edward's mother and Chris's wife. On October 13, 2008, Edward petitioned the probate court to be appointed as guardian and conservator for Nell. On October 14, 2008, the probate court entered an order stating, in part:

" After consideration of the premises and of the pleadings presented to this Court, the Court finds that Nell N. Rush may be an incapacitated person within the meaning of the Uniform Guardianship and Protective Proceedings Act and that a temporary Guardian and Conservator of her estate should be appointed. It is therefore
" ORDERED, ADJUDGED AND DECREED that:
" 1. The Petition filed herein, as it pertains to a temporary order, is hereby granted and Charles Edward Rush is hereby appointed Temporary Guardian and Conservator over the estate of Nell N. Rush. Temporary Letters of Guardianship and Conservatorship shall be immediately issued to the said Charles Edward Rush upon filing a $300,000 bond.[2]
" 2. The Temporary Guardian and Conservator shall have all the powers and duties conferred under § 26-2A-152 and -153 and § 26-2A-108 of the Code of Alabama, 1975.
" 3. All other petitions, requests and outstanding matters are hereby reserved and shall be ruled upon by the Court at the final hearing."

There is no indication in the record that Edward posted the $300,000 bond required by the October 14, 2008, order, and no letters of ...


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