1 Ark. 137 | Ark. | 1838
delivered the opinion of the Court: This cause comes before the Court upon a writ of error, sued out by the plaintiff in error, against the intestate of defendant in error, to the Lawrence Circuit Court.
The intestate of the defendant in error brought an action of debt in the Court below against the plaintiff in error in an instrument of' writing, signed and sealed by John Acheson, the plaintiff’s intestate, by which the intestate acknowledges his indebtedness to the defendant’s intestate in the sum of three thousand and seventy-seven dollars, and the liability of the defendant’s intestate for him to pay certain debts to sundry persons, amounting to the sum of three thousand two hundred and ninety-nine dollars and seventy cents, the two sums making the aggregate amount of six,thousand six hundred and seventy-six dollars and seventy cents. To the declaration filed the defendant in the Court below demurred, but the Court overruled the demurrer; he then pleaded that the action was prematurely brought, but withdrew this plea pleaded ji/eiie administravit, praeler two hundred and forty-two dollars and ninety-two cents, to which plea the plaintiff in the Court below demurred: the Court however overruled the demurrer, and he then filed his replication, in which he alleges that the plaintiff in error at the commencement of this suit, and ever since, had divers goods and chattels which were of his inféstate at the time of his death, in his hands as administrator, to be administered, of great value, to wit: of the value of the debt set forth in the declaration, and wherewith as administrator he could and ought to have satisfied the debt in the declaration mentioned; on this replication issue was joined.^ Under this_ state of pleading, the Court below (for it appears that no verdict was rendered by a jury) entered up judgment de bonis intestati et si non de bonis propriis against the plaintiff for the debt, and one thousand and sixty-eight dollars and twenty-three cents damages and costs. The errors assigned may be resolved into two: First, that the declaration is insufficient: Second, that the judgment given in the Court below is erroneous and illegal.
The first objection the Court considers untenable; admitting the insufficiency of the declaration, there being a cause of action apparent on the face of it, no such objection can be successfully urged before this tribunal. The proper time for making the objection has passed. The plaintiff, if he relied on the insufficiency of the declaration, should have appealed from the judgment of the Court, on the demurrer to the same. On this point, the authorities are too conclusive to admit of a doubt. See 2d Marshall's Reports, 143, 254, 436; 3 Bibb, 52; Comyn’s Digest, 6 v. 262; Story's Pleadings, 71.
It has been contended by'the counsel for the defendant that the objection against the judgment should not be sustained, because the judgment consists of distinct and independent parts, and that portion operating unjustly against the plaintiff’s own property may well be reversed, and the remaining part affecting him in his representative character of administrator affirmed: but in the view of the Court, whether the judgment consists of distinct and independent parts, so that one part might be reversed and the other affirmed, or the same is incapable of separation is a matter perfectly immaterial, as the omission to state in the judgment the amount of assets unadministcred vitiates the whole of it. The plea oí plena adminislravit, though not sustained, is not necessarily a false plea within the knowledge of the party pleading it; and if it be found against him, the verdict ought to find the amount of assets unadministered, and he Í3 liable for that sum only. Siglar vs. Haywood, 8th Wheaton, 675.
Suppose one part of the judgment were reversed and the other affirmed, would it better the situation of the plaintiff in error? Not in the least; for even then the plaintiff’s own property (upon the supposition that he has no assets to he administered,) would he exposed to the payment of the debt. Whether the plaintiff has assets unadminister-edornot, it is impracticable for this Court to determine. From the record non constat he has one cent; if the consequence suggested .would result from carrying into effect either part of the judgment, (and that it would seems too clear to be denied), a reversal of it is absolutely required. The act of the Legislature in regard to informality in pleading, relied upon in argument by the defendant’s counsel, the Court cannot consider applicable to the case presented by the record.
The judgment is therefore reversed, the case remanded for a new trial, and costs in this Court awarded to the plaintiff in error.
Nathan Haggakd, one of the Judges in this cause, dissents from the opinion of the Court herein delivered at this time, so far as the first assignment of errors is decided upon. It is not deemed necessary or important to decide on said assignment, because such decision would not vary the result of the case. And inasmuch as there was no withdrawal of the demurrer to the declaration prior to the plea to the merits being interposed, the reasons upon which that part of the opinion of the Court is predicated, have no force here. Therefore a non-con-currcnce on that point with that opinion is here stated, and said dissent ordered to be entered with the opinion delivered in this case.
G. N. CAUSIN,
NATHAN HAGGARD,
THOS. J. LACY.