19 Ark. 243 | Ark. | 1857
delivered the opinion of the Court.
Martha F. Trapnall, as administratrix with the will annexed of Frederick W. Trapnall, deceased, brought an action of debt in the Phillips Circuit Court, against John A. Craig, upon a writing obligatory, executed by the defendant to the plaintiff’s testator. The plaintiff made proferí, in the declaration, of the bond sued on, and of her letters of administration.
The appearance term commenced on the 25th of May, 1857. On the 28th of May, the defendant filed a prayer for oyer of the obligation sued on, and of the plaintiff’s letters of administration. On the 29th May, the transcript shows the following entry: “ Now on this day come the parties, by their attorneys, and the plaintiff grants oyer.of the writing sued on herein, by filing a copy, and exhibiting the original; and the plaintiff failing to grant oyer of letters of administration, on motion of attorney for defendant, judgment of discontinuance is granted herein. It is therefore considered by the Court that this cause be discontinued, and that the defendant do have and recover of and from the said plaintiff all of his costs in and about this suit laid out and expended,” etc. Plaintiff brought error.
The plaintiff having sued in her representative character, upon a cause of action which accrued to her testator, it was proper for her to make proferí of her letters, and the defendant was entitled to a grant of oyer of them. Anderson vs. Wilson, 13 Ark. 410; Knott et al. vs. Clements, Ib. 335; 1 Tidd’s Prac. 586.
After obtaining a grant of oyer of the letters of administration, the defendant may question their validity by demurrer to the declaration. Hynd’s ex. vs. Imboden, 5 Ark. 385; Cocke exr. vs. Walters, 1 Eng. 410. Or he may plead ne unques administrator in bar of the plaintiff’s right of action, and test the validity of the letters on the trial of an issue to the plea. 3 Chitty's Plea. 942, and notes (11th American Edition); 1 Ark. Ref. 361.
The plaintiff, therefore, had no right, in this case, to assume that the'defendant desired to interpose matter in abatement, or that he could interpose such matter only, in reference to the right of the plaintiff to sue, and upon such assumption, to refuse to grant oyer of the letters.
Under the practice in this State, the plaintiff was bound to make profert of her letters of administration, the suit being-brought in her representative capacity, upon a cause of action accruing to her testator; and having done so, the defendant was entitled as a matter of right, to a grant of oyer thereof, as above remarked. Having filed his prayer for oyer, we apprehend that it was the duty of the plaintiff to respond thereto, as to any other pleading interposed on the part of the defendant, requiring a response, in the regular progress of the process of pleading. The defendant is required to file his pleas to the action at or before the calling of the cause, in its regular order on the docket. Dig., ch. 126, sec. 53. The plaintiff would be bound to respond to the prayer of oyer in time to enable the defendant to plead, before the calling of the cause. But the Court, upon application, and upon a proper showing, has the discretionary power to extend the time allowed to the defendant to plead to the action; and the like discretionary power, no doubt, upon such application and showing, to allow the plaintiff any reasonable time that might be required to respond to the prayer of oyer.
In this case, no bill of exceptions was taken by the plaintiff, and we are not advised as to the particular state of facts upon which the Court adjudged the plaintiff to be in default, and rendered the judgment of discontinuance.
The record entries show that upon one day the defendant filed his prayer for a grant of oyer of the bond sued on and the letters; and that, on the next day, the plaintiff granted oyer of the bond, but failed to grant oyer of her letters of administration; whereupon, the Court, upon the motion of the defendant’s attorney, rendered judgment of discontinuance.
There is no showing that the plaintiff asked or desired further time to grant oyer of the letters, or offered to do so at any future period. It may be that the plaintiff’s attorneys insisted, in the Court below, as they have done here, that the defendant was not entitled to a grant of oyer of the letters, after the time for pleading in abatement had expired, and, on that ground, declined to make the grant. We are bound to presume in favor of the correctness of the judgment of the Court below, unless the plaintiff, by bill of exceptions, had put such facts upon the record as to make it appear that the Court had erred.
The judgment is affirmed.