32 Ala. 353 | Ala. | 1858
The proof made at the spring term, 1857, authorized the amendment of the judgment entry made at the fall term, 1856, in relation to the taking and setting aside the non-suit. There was no error in allowing that amendment, and in placing the case on the docket for trial. — Reese v. Billing, 9 Ala. R. 263; Edwards v.
Although the complaint does not, on its face, show that Boynton claims a recovery here as administrator of McEwen; yet, as he might recover under it upon his title and possession as such administrator, he had the right to prove that it was in his representative capacity that he here claimed a recovery. The return of the appraisers, as offered in evidence by him, tended to show that he claimed a recovery in that capacity, and was admissible for that purpose. — Calvert v. Morrow, 18 Ala. 67.
No plea of ne ungues administrator appears in the record. But, if such plea did appear, the evidence shows it to be untrue; and that Vm. M. Lapsley was the administrator in chief, and the plaintiff, Boynton, the administrator de bonis non of McEwen. The defendant could not be entitled to a verdict on a plea which was thus disproved; and there was, therefore, no error in refusing the 18th charge asked by the defendant.
If the final judgment is not in the proper form, it is fully as favorable to the defendant as it should have been. It does not deprive him of any legal right; and he has no ground for complaining of it.
What we have above said disposes of all the matters relied on for reversal, and requires us to affirm the judgment.
Judgment affirmed.