8 Ala. 391 | Ala. | 1845
In Hughes v. Harris, 2 Ala. Rep. 269, the proceedings and judgment of the Court of a sister State were certified by the clerk, and attested by the presiding Judge, and in form were such as were had in a Court of record; we held, that it would be intended, without further proof, that the Court rendering the judgment was a Court of record — there being no plea putting that fact in issue. Without stopping to inquire, whether the same intendment should be indulged in favor of the Probate Courts of Mississippi, we are satisfied, that the transcript -of the grant of administration to the plaintiff, made in that State, is not obnoxious to the objections which the defendant below has made to it. The clerk first attests the genuineness of the copy, then the Judge certifies to the official character of the clerk, and the formality of his attestation; and lastly, the clerk vouches, in the terms of the law, the regularity of the Judge’s qualification, &e. This is in conformity to the act of Congress of 1804, amendato-ry of the previous enactment of 1790. The attestation of the clerk, and several certificates consequent thereon, are all dated of the same day, and müst be intended to have been made in the order in which they follow each other.
By an act passed in 1821, it is enacted, that when letters of administration, «fee. on the estate of any intestate, &c. having no known place of residence in this State, at the time of his death, shall have been duly obtained in any other State, &c. and no personal representative of such intestate shall have been appointed, and qualified, in this State, the representative appointed out of this State, “ may maintain any action, demand and receive any debt, and shall be entitled to all the rights and privileges which he, she or they could have done, or would have had, if duly appointed, and qualified within this State.” [Clay’s Dig. 227, § 31.] The question arising upon this statute, in the present case, is, whether a domestic administrator, when sued in our Courts, by one appointed abroad, should plead his appointment in bar.
In Cloud v. Golightly’s Adm’r, 5 Ala. Rep. 654, we said, that it was not necessary for a foreign administrator, suing in our Courts, to negative by his declaration, that the intestate had a known place of residence in this State at the time of his death, or that his estate within the same had been committed to a domestic representative. The dictum was also added, that if a debtor
In Jenks v. Edwards, 6 Ala. Rep. 143, the question was directly raised, whether, where a suit was brought in the name of one person for the use of another, it was allowable to plead in bar, that the nominal plaintiff was dead at the commencement of the action. After a very full examination of the point we said, “ Our conclusion from the authorities is, that, where the plaintiff’s disability is such, that it cannot, in rerum natura, be removed, at any time in future the defendant may alledge it either in bar or abatement.” Again, the question is asked, why a plea in bar would not be good? and thus answered: “The nature of it, (the defence,) is such, that it cannot give the plaintiff a better writ, that he may institute another suit; and a verdict upon an issue thus formed, against the plaintiff, will not bar an action by his personal representative, founded upon the same cause. Upon principle then, we think the plea” in bar well pleaded.
The dictum in the first case, we are still inclined to think, correctly lays down the law, viz; that a debtor of a deceased person, when sued in Our Courts by a foreign administrator may plead in abatement, that the deceased had a known place of residence in this State, or that his estate within the same had been committed to a personal representative. True it is said that this is the correct practice, yet it is not intimaed, either directly or indirectly, that it is the only mode in which the debtor may object to the want of authority by an administrator appointed abroad to sue in our Courts. There is then nothing in the decision referred to, establishing that a plea in abatement is the exclusive remedy for the defendant in the case supposed, though we will not say that such is not the law. The citation is at most a mere obiter dictum, and we should not be inclined to yield to it the force of authoi’ity, but if necessary would examine the point as res integra.
In Jenks v. Edwards, we supposed that if the plaintiff’s disability be perpetual, it might be pleaded in bar, but if temporary only, it was matter of abatement. Here the right of action, if it ever existed, was entirely lost by the grant of administration to the defendant, by the proper Court in this State. A foreign ad
From this view of the law, it would seem, that the matter of the second plea constituted a perpetual bar, and was well pleaded. The demurrer was therefore improperly sustained; the consequence is, the judgment of the Circuit Court is reversed and the cause remanded.