Pipkin v. Hewlett

17 Ala. 291 | Ala. | 1850

DARGAN, C. J.

It is too well settled by the decisions of this court to be now controverted, that the mere knowledge on the part of an executor or administrator of the existence of a claim or debt against the estate he represents is not sufficient to supersede the necessity of a presentation of the claim to him. Yet it is equally well settled, that the commencement of a suit against him and the service of the writ, or the service of a scire facias to make him a party to a suit pending against the decedent at his death, within eighteen months from the grant of letters testamentary or of administration, is a sufficient presentation within the intent and meaning of the act. — Jones v. Lightfoot, 10 Ala. 17; Boggs, adm’r, v. The Br. Bank at Mobile, ib. 970; Hallett & Walker v. Br. Bank at Mobile, 12 Ala. 193. But in the case of Bigger’s Adm’r v. Hutchings et al., 2 Stewart 445, this court held that if a plaintiff took a non-suit after the service of the writ, then the service could not be considered a sufficient presentation of the claim. In the subsequent case of Garrow v. Carpenter & Hanrick, 1 Porter 359, this court disapproved of the reasoning in the case of Bigger’s Adm’r v. Hutchings et al., yet admitted that they were willing to adhere to the decisions, •limited to the precise point that was presented for the consideration of the court, and this authority, thus limited, has ever since been acquiesced in. Applying the principle of this decision to the case at bar, there is no error; for the record shows that a scire facias was issued against Mary Scott as the administratrix of Thomas W. Scott, which was executed on Nancy Scott, and although Nancy Scott was the administratrix, and there was a mere misnomer in the sci.fa., the plaintiff in error did not proceed on .this writ, but suggested the mistake and prayed a sci. fá. against the administratrix by her proper name. This scire facias was never executed, nor were any further proceedings ever had on the first writ in which she was named Mary. We must therefore hold that the first scire facias was voluntarily abandoned by the plaintiff, and its service not a sufficient presentation of the claim.

2. It is however urged that the plea is insufficient,.because it does not show that eighteen months had elapsed from the timé of the-grant of the letters in chief to Nancy Scott until-the service of the scire facias on the defendant, deducting the time that intervened between the death of the administratrix and the appointment of the present defendant. The plea shows that Nancy Scott was appointed administratrix on the 16th day of January 1839, and that the claim was not presented either to her or to the defendant within eighteen months thereafter. This •is a sufficient bar. In .the case of Lowe’s, Adm’r v. Jones, 15 Ala. 445, we held that the statute of non-claim'continued to run, notwithstanding the death of the administrator, and that the time intervening between the death of an administrator in chief and an appointment of an administrator de bonis non was not to be deducted in computing the bar! It may however be observed, ■that even if the law was as is contended by the plaintiff in error, the plea would be good in form, for if there was-any intervening time between the death of the administratrix in chief and the appointment of the defendant, which-being deducted would bring the service of the scire facias within' eighteen months from the •time of the original grant of letters of administration, it should have been shown by the replication.

3. -It is again urged that the agreement between the parties entered of record, waiving all errors that had intervened in making the representatives- parties, and which is avered in the replication, estops the defendant from insisting on the non-presentation of the claim. This is not the effect of the agreement. It only waives all irregularities, if any had intervened, in making the representative a party to the suit, but does not deprive him of the right to insist on the non-presentation of the claim, nor does it revive in any manner the original scire.facias which had been abandoned.

We think the demurrer to the plaintiff’s replication was properly sustained, and that there is no error in the record.

Let the judgment be affirmed.