62 So. 176 | Ala. | 1913
Appellee, being sued, pleaded at tbe same time a plea in abatement and pleas in bar of the suit, and the issues so raised were submitted together to a jury. More conveniently, perhaps the two classes of pleas could have been determined separately; the plea in abatement being tried first in order. It was not impossible, however, to try the case on all pleas at once; but in that case the jury should have been intrusted, in the event of a finding for defendant, to indicate by their verdict the issue on which they so found, for so only could the exact meaning and effect of such finding be determined and made to appear. As it is, we are unable to say whether the resultant judgment was intended to determine and conclude the merits of the asserted cause of action or only the disability of the plaintiff to maintain the particular suit; but no objection to this, feature of the procedure was taken, no suggestion made that the plea in abatement had been waived by the filing-of the pleas in bar, no effort made to have the verdict discriminate between the issues submitted, and the court below tried the issues of law and fact as the parties presented them. We must now proceed in the same way.
Plaintiff (appellant) sought to recover damages for the alleged wrongful death of his intestate, those counts which were permitted to go to the jury under the evidence proceeding under the homicide act, section 2186 of the Code. In abatement of the suit defendant pleaded that there was then pending another suit between the identical parties, on the identical cause of action. There was also plea of ne unques administrator. This, though a plea in bar, went only to plaintiff’s right to maintain the suit. It did not deny deliction on the part of defendant. On these pleas, as well as on pleas in denial of defendant’s wrong and pleas of contributory negligence, issue was joined and the case tried.
If defendant, instead of putting its plea in abatement into the form of mere conclusions, had pleaded the record of the alleged pending suit as it was without more, “Prout patet per recordum,” as the old books put it, it is manifest that on demurrer the plea would have been held bad. For Milbra and Milburn are not idem sonans, and prima facie they describe different persons. Defendant pleaded a record according to its supposed legal effect; but between the plea and the proof of it there was a material and fatal variance which the testimony offered was incompetent to explain away.
“The record imports absolute and complete verity. It is neither to be increased nor diminished by any averment, out of or beyond the record. It is to' the record, as the law and the testimony, upon which the pleader refers his claim.” — Dimick v. Brooks, 21 Vt. 578. And the rule is that what ought to be of record must be proved by the record. — Munday v. Vail, 34 N. J. Law, 418; Mondel v. Steel, 8 M. & W. 858. But while the record cannot be contradicted or enlarged, consistently with it, and within it, the parties and subject-matter may be identified. — Tarleton v. Johnson, 25 Ala. 300, 60 Am. Dec. 515. A number of our cases to the same general effect are cited by counsel for appellee in their brief.
The question then is, How far, within the principles laid down in the cases referred to, may the defendant go in its effort to eke out by parol a record which oni its face does not purport to deny plaintiff’s authority to sue, in order to destroy the effect of another record regular on its face, and in perfect accord with the facts, granting that authority to plaintiff? This, in a certain aspect, is a question of due process in the probate
Defendant’s plea of ne unques administrator asserted its 'more essential right to be held answerable only to that plaintiff who had lawful authority to sue. Authorities cited by appellee are ample to show that when the probate court has granted letters of administration on the estate of a decedent, though the grant be voidable, it is without jurisdiction to make a second grant until the first has been revoked, and a second grant is null and void and its invalidity may be exposed on collateral attack. But if its first effort is wholly ineffectual, then the court may ignore that effort and its record, and proceed to assert its jurisdiction and to appoint an administrator, and that, in our judgment, is what the probate court properly did in this case.
The court of probate is a court of general jurisdiction in the matter of granting letters of administration. All intendments must be indulged in favor of its records. Here the court in both instances was dealing with its own record, and must be presumed to have been informed of the facts. The facts authorized a finding that its first effort had been abortive; and, with the view of sus
Other questions indicated by the assignment of errors have not been argued by counsel for appellee, and it would probably serve no useful purpose to discuss them at this time. Because the trial court failed to observe the principles which we think should have controlled its action in respect to the questions discussed, the judgment will be reversed.
Reversed and remanded.