8 Ala. 574 | Ala. | 1845
It follows from these decisions, that as no judgment was entered against the garnishee, when he made his answer, it might be rendered subsequently, whether of the term it was entered, or nunc pro tunc as of the term of his answer; or at the term after-wards, when judgment was rendered against the defendant in attachment. When therefore the personal representatives were called on by sci. fa. to show cause why they should not be made parties to the proceedings, it was their privilege to show ahy cause which existed at that time, to discharge the estate which they represented. The statute of non claim' is one intended not only for the protection of the administrator, but is also for the benefit of the heirs and distributees of the decedent. [Thrash v.
If an imperfect judgment exists against the decedent, it certainly is as much the duty of the creditor, asserting that as a claim against his estate, to present it within eighteen months, or to take the necessary measures to bring in the administrator, as if it was a perfect proceeding. The fact that the creditor has no control of the evidence of the original debt, cannot, make a distinction, because that is not what he is required to present; that is not his claim; the one which he is invested with, arises out of the proceedings instituted by him. Nor is the fact that a suit is pending, a sufficient reason to withdraw the claim from the influence of the statute. [See King v. Mosely, 5 Ala. Rep. 610.]
The English practice is, to declare in sci, fa. upon the appearance of the party, and to this declaration the defendant pleads either in abatement or bar, as in other.suits. [2 Saund. 72 t.] But with us, the universal practice is, to consider the sci. fa. as Sufficient, without any declaration upon it. Usually, the controversy is determined upon a motion to quash, or upon a demurrer, but in some cases, such as sci. fa. against bail, or upon recognizances, pleas are usual and customary. But we do not think an answer as distinguished from a plea, is «o entirely irregular as to warrant the Court in entirely disregarding it. If the plaintiffhere wished to raise the question whether this mode of defence was proper, he should have demurred, or otherwise in some manner ■called the attention of the Court and opposite party to the defectiveness of the pleading;. As this was not done,>and as'the an