5 Ark. 705 | Ark. | 1844
By the court,
The principal point to be decided in this cause, arises upon the sufficiency of the plea of former recovery upon the claim sued on before the probate court. The defendant pleaded in bar a former recovery, to which the plaintiff took issue, and the enquiry now is, is it a good plea to defeat the action ? The facts are substantially, as set forth and contained in the plea, that the demand upon which the present action is brought, was exhibited before the commencement of the suit to the administrator, and that he endorsed thereon the approval of its justice, and that upon its presentation to the court of probate, an order was entered for its allowance, and it was directed to be classed according to its grade or dignity. The record of the proceedings in the probate court, are properly referred to in the plea. The statute regulating the proceedings upon administration, directs the administrator or executor to approve the claims, and to endorse thereon the time it was exhibited, and to file the same in the office of the clerk of probate, who shall present the same, at the succeeding term after the filing, to the court for classification, and make a record of these facts. Upon the presentation of these facts to the court of probate, the court shall make an order classifying the same, which the 96th sec. Rev. Code, chap. 4, declares shall have the force and effect of a judgment. All the requisites of the statute have been substantially complied with in the present case, and although they have not been very accurately and artificially averred in (he plea, they have nevertheless been set up-in such manner and with sufficient certainty to create a good defence. That the probate court has jurisdiction in this classes of cases, has been expressly decided in Yell, &c. use of Conant et al. vs. Outlaw and others, at the last term. And as the judgment is still in full force and unre-versed, it constituted a good bar as set up in the plea. As the motion for a new trial turns exclusively upon this point, the court properly refused it. Judgment affirmed.
