Grantham v. Payne

77 Ala. 584 | Ala. | 1884

SOMEEYILLE, J.

1. The action was properly brought in the name of the wife alone, as “ the party really interested.” She is shown to have been the beneficial owner of thá note sued on, and it was a part of the corpus of her statutory separate estate under the laws of Alabama. Although payable on its face to the husband, he held the legal title in trust for the wife as beneficiary, and his possession was hers.. — Code 1876, §§ 2890, 2892 ; Wortham v. Gurley, 75 Ala. 356.

2. The ownership of the note by the plaintiff was a fact to which her husband, Payne, could properly testify. The objection to this testimony was without force.. — Nelson v. Iverson, 24 Ala. 9 ; Elliott v. Stocks, 67 Ala. 290 ; Patterson v. Kicker, 72 Ala. 406.

3. It was no valid objection to the writ of certiorari, granted by the probate judge to the justice’s court, that the five days allowed by statute for talcing an appeal to the Circuit Court had elapsed when the petition for the writ was granted. One of the chief functions of this writ is to secure a review of proceedings from- which the right of appeal has been in some manner lost or barred.— Washington v. Parker, 60 Ala. 447 ; Wright v. Gray, 20 Ala. 363. The least time within which a limitation would be perfected as to such writs of eertiorari, would probably be one year. — Mason v. Moore, 12 Ala. 578 ; Enis v. Poss, 19 Ala. 239 ; Code 1876, § 3949, as amended by Acts 1878-79, p. 40.

4. The payment of the judgment to the justice by the defendant, without any acceptance of the money by the plaintiff, could not manifestly affect the right of the plaintiff to have the proceedings reviewed in the Circuit Court, where the trial was required to be had de novo. The basis of the appeal was the failure of the plaintiff to recover the sum to which she was justly entitled, by reason of the improper allowance against her of a set-off in favor of the defendant.

5. In relation to this set-off, the court properly charged the jury, that so much of it should be disallowed as embraced articles of apparel purchased by the husband for his individual use ; the separate statutory estate of the wife not being subject to the payment of such a debt, by set-off or otherwise. — Code, 1876, §§ 2706, 2710 ; Durden v. Mc Williams, 31 Ala. 438.

We find no error in t'he rulings of the court, and the judgment is affirmed.