37 Miss. 110 | Miss. | 1859
delivered the opinion of the court.
This suit was brought by the plaintiff in error, on a valid note,
The defendant answered, relying upon a decree of insolvency made, in relation to the estate, by the Court of Probates of Talla-hatchie county, at the instance of the administrators in chief; the neglect of the plaintiff to present the claim, now in suit, to the commissioner, and the consequent failure of the commissioner to embrace the same in his report of the claims allowed against the estate, and the due return of the report, and the confirmation of the same by the court.
The plaintiff’s replication, to this answer, admitted the alleged facts ; but averred, that the said declaration or deere of insolvency, was procured by fraud, and setting out the facts upon which the averment of fraud was based.
The defendant demurred to the replication. The demurrer was overruled, and leave given to the defendant to plead. Two pleas were then filed by the defendant. The first alleged that the plaintiff was not entitled to recover, for the reason that the claim sued on was “ not, at any time, before the institution of this suit; and never had been probated, so as to authorize its payment, by any representative of the decedent, or by defendant as administrator de bonis non of said estate; or so as to authorize its collection by the plaintiff.” The second alleged the non-presentation, of the claim sued on within two years next after the grant of letters of administration on the decedent’s estate, and due publication of notice thereof. The plaintiff demurred to each of these pleas, which was overruled as to the first, and sustained as to the second; .with leave to plaintiff and defendant to plead over.
The plaintiff then filed a replication to defendant’s first plea, which was held bad on demurrer, and the court having refused to allow the plaintiff to amend his replication, and the defendant declining to plead over, judgment final was entered against the plaintiff. Hence, this writ of error is prosecuted.
To make the presentation of a claim to the executor or administrator of a decedent’s estate good, within the time prescribed by the statute, it is not necessary that there should have been previously a probate of the claim, or an allowance by the Court of Probates. The object of the statute, in requiring the probate of
It is manifest, therefore, that the court erred in overruling the demurrer to the defendant’s first plea or answer filed under the leave to plead over, as the matter of defence, thereby set up, was simply that plaintiff’s claim had never been probated or allowed by the Court of Probates, within two years next after the grant of letters of administration, and due publication of notice thereof by the administrator.
It is clear that, under the settled doctrine of this court, the decision sustaining the demurrer to defendant’s second plea, filed under leave, was correct. Miller v. Jeff. College, 5 S. & M. 651.
But it is insisted, by the defendant in error, that, conceding the invalidity of the defendant’s said plea, the demurrer should, nevertheless, have been applied to, and sustained as a demurrer to the complaint, which, it is contended, is fatally defective.
It is conceded that, where a demurrer is interposed by either party, it extends back and attaches to the first fatal defect in the pleadings; and hence that judgment will be given against the party guilty of the first fault.
Here it is assumed that the complaint is insufficient to entitle the plaintiff to a judgment. 1. Because it is averred that the defendant executed the note upon which the suit was brought, and yet demands judgment de bonis te stator is ; or, in other words, the defendant is sued in his representative character on a note alleged to have been executed by him in his individual capacity. And 2. Because it is judicially known to this court that the plaintiff is not a corporation, and hence not entitled to maintain any action.
1. The pleadings in this case were framed under the Act of the 9th of March, 1850, which abrogated many of the rules of special pleading. The instrument on which the suit was founded was filed with the complaint; was referred to, and expressly made
2. The second position is,' also, untenable. ' By pleading to the merits of the action, without calling in question the character in which the party brought the suit, the objection, if any, was waived. Lanice et al. v. Trigg, 6 S. & M. 641; Hemphill v. Bank of Alabama, Ib. 44.
But if this were not the result of pleading to. the merits in bar of the action, this court is bouird judicially to' know that the Branch Bank of the State of Alabama at Mobile was’a corporation, at least so far as to b¿ capable of suing and being sued as such. Aikin’s Dig. 75, 76, §§ 7, 12.
Judgment reversed, and cause remanded. ’