Aycock v. Johnson

119 Ala. 405 | Ala. | 1898

COLEMAN, J.

The appellee, as administratrix of the estate of W. A. Johnson, brought suit upon a promissory- note, against the appellant, as administrator of the estate of John’Aycock. It is hot controAmrted that defendants intestate executed the note sued upon. The defendant pleaded'the statute of non-claim of twelve months and of eighteen months. The suit Avas instituted on the 1st day of September, 1897. Neither of said pleas of non-claiui are technically correct, in the averment that the claim sued' upon was not presented within eighteen months, or Avithin twelve months from the 25th day of February, 1896. There is nothing in the complaint or the plea from AAThich can be determined the pertinency or relevancy of the 25th day of February, 1896. We find from the bill of exceptions that letters of administration were-granted the defendant the 27th of February, 1896. The plea ought to have averred a further fact, giving the date of the grant of letters of administration, and thereby have shown the materiality of the averment that the claims were not presented within the time mentioned from the date of the grant of letters of administration. Prior to December 9th, 1896, the statute of non-claims required the presentation of claims within eighteen months. By statute of that date (see Acts, 189.6-97, p. 156), the former statute was amended, and twelve months fixed as the time within which claims must be presented. — Code, 1896, §130. The question intended to be presented for review- by this appeal is, whether or not the present statute acted retroactively and barred the plaintiff’s right to. recover. As shown by the facts stated above, the suit was instituted within less than • twelve months after the enactment of the present statute. Our construction of the statute is, that it operates prospectively only, upon all claims, whether they accrued prior or subsequent to its enactment, but not so as to allow- a longer period than eighteen months to claims which had accrued during the existence of the former statute. To illustrate: If the statute of eighteen months had been running against a claim for one month, when the amendatory statute Avas enacted, the one month w-ould not be computed as a part of the twelve months alloAved by the amended statute, but the party Avould be allowed tAvelve months after its adoption. On the other hand, if the statute of eighteen months had been running against a claim for fifteen months, the amended act Avould not give the holder of the claim tAvelve additional months within Avliicli to present his claim, nor could the latter act be pleaded in bar, because the claim had not been presented within twelve months. The holder of the claim would be allowed the benefit of the statute of eighteen months, but not a longer period. As the suit was instituted within less than twelve months after the present statute Avas enacted, the plea of the statute of twelve months, without further averments than those contained in the plea, presented no defense to the action. — Rawls v. Kennedy, 23 Ala. 240.

There Avas no error in admitting the testimony of the witness, W. E. Aycock. Standing alone, its relevancy might not be apparent, bnt considered in connection Avitii the other evidence in the case, and especially in connection with that of the defendant elicited bn his cross-examination, there can he no doubt of its relevancy and materiality. ■.

After the ■ evidence had closed, the court gave the affirmative charge for plaintiff as to the defendant’s plea of the statute of non-claim of eighteen months. The law has been so often declared as to what constitutes a presentment, we deem it unnecessary to repeat it. See decisions collected under section 130 of the Code of 1896. ■

While there is some conflict as’ to the number of conversations had between the witness Johnson and the defendant, and some conflict as to some facts in the case, the uncontroverted facts show a legal presentment of the claim to the defendant. There is no error in the record.

Affirmed.