Innerarity v. Frowner

2 Ala. 150 | Ala. | 1841

GOLDTHWAITE, J.

1. After the defendant was served with the process in this case, it became his duty to attend to the progress of the .suit, until he should be discharged temporarily, by its continuance from time to time, or finally, by its termination, by the judgment of the Court. We must, therefore, pre-. sume that he was before the Court, when the plaintiff’s death was suggested, and the administrator made a party. Then was the proper time to contest the right of the administrator to become a party to the suit: and the sufficiency of his title could have been tested by an issue of law, or of fact, as the circumstances of the case might have required.

The want of a proferí in curia of the letters of administration, in the case of Coopwood v. Taylor, 7 Porter, 33, was held not to be available after verdict; and by the English practice, is only matter of special demurrer. We think the same principle in ust apply to a case of this description, in which the administrator becomes a party after its commencement. Justice requires nothing more, than that the defendant shall be permitted to controvert, if he chooses to do so, the title of the administrator, when he is proposed as a party to the suit.

We do not consider that it is necessary, that more should be stated in the record than the suggestion of the death of the plaintiff, and. the admission of his personal representative as a party.

2. It appears that this suit was continued after the interlocutory judgment by default was taken, and that the damages were ’ directed to be assessed at the ensuing term. Afterwards, and during the same term, the damages were assessed, and a final judgment rendered. It is not important to enquire, whether this was done on the same, or a different day, as, in either event, our opinion would be the same. Should it be conceded to be a matter of discretion with the Circuit Court, to set aside a continuance once made and entered of record, which concession, however, we should be slow to allow, it is obvious, such is not the case as presented, because there is no order setting aside the continuance.

It was error in the Circuit Court to proceed, after the case was continued, and the judgment is therefore reversed, and the case remanded.