Waddill v. John

57 Ala. 93 | Ala. | 1876

MANNING, J.

The objection made to the validity of" the process and proceedings in this cause by reason of its Raving been begun in the City Court of Selma, upon the -argument that this court being the creation of an act of the legislature of 1864, during the war, was, therefore, not a legal tribunal, is not well founded. The observations to which we are referred, of the judge who delivered the ■ opinion in Perkins, Treasurer v. Corbin, Judge, &o., on this point (45 Ala. p. 116) were probably not concurred in by his colleagues on the bench. At least, no proposition extracted from them, is stated as having been decided in that case, according to the head-notes, which were prepared by the judges themselves. Our views regarding the acts of the legislature during the war are indicated in the opinion delivered in Parks v. Coffey, 52 Ala. 32, according to which the City Court of Selma was legally established by a valid .■statute.

The other important question in this cause is, whether there was, or not, a presentation by appellee of the note sued ■on, to appellant as executor, according to the statute of non-claim, within eighteen months after the grant of letters testamentary.

The testator, Vm. Waddill, died after the suit was brought. His death being suggested in court,.an order was made that a scire facias issue to make his executor a party. A writ for that purpose was issued and served on appellant, but did not designate the court in which he must appear, or the suit was pending. At the return term of the writ it was ordered by the court that the action be revived against appellant. And at a subsequent term, more than eighteen months after his appointment as executor, a motion was made by an attorney, as amicus curice, that this order be set -aside, on the ground, among others assigned, that the sci.fa. •did not show what court the cause was pending in; and this motion being overruled, a judgment was, a few days after-wards, rendered for plaintiff against appellant as executor. -On appeal to the Supreme Court, it was held that the sci.fa. was void for the reason above specified; inconsequence of which the judgment was reversed, and the cause remanded. (See report of the case, 48 Ala. 232.) Appellee, plaintiff below, then moved in the circuit court, that the defective sci.fa. be set aside, and that another be issued; which was ordered accordingly. On being ’ thus brought into court, appellant pleaded no presentation of the note sued on according to the statute of non-claim. On the trial, appellee produced the note, admitted the death of testator and the appointment of appellant as executor, with the dates of these events, and further, “ that the note sued upon was never presented to said executor, unless the pendency of the proceedings herein set out was a presentation, and was never filed in the probate court or office of the probate judge; and that no appearance was ever made by or for said William Waddill, or said J. Cooper Waddill, in this cause until this trial.” Whereupon the court charged the jury that if they believed the evidence, they must find for plaintiff, and defendant excepted.

In regard to the statute of non-claim, this court said in Jones’ Ex’rs v. Lightfoot, 10 Ala. 24: “ If knowledge merely -of the existence of the claim by the personal representative • is sufficient in any conceivable case (except where the debt is due to the personal representative himself), it must be in this. The executors are the sons and heirs of the deceased, - and it is clear from the proof, that they were perfectly aware - of its existence, as they had consulted counsel about it. But, in our opinion, knowledge merely of the existence of the - claim is not sufficient, and to hold that it was, would be, in effect, to repeal the statute. At least, it would introduce so many exceptions to the rule, that the rule itself would be rendered nugatory.” This had been previously declared to be, and has ever since been, the doctrine of this court. It is settled, however, that the bringing of a suit which discloses what the claim sued on is, against an executor or . administrator, or the revival against him of such a suit brought against his testator or intestate, upon service of a sei. fa. on the personal representative within eighteen months after the grant of letters, is a sufficient presentation within the meaning of the act. But it was also held in Pipkin v. Hewlett, 17 Ala. 291, that if the writ of seire faeias, by which a suit is revived against an executor or administrator, • and which was served within the eighteen months, be aban- • doned on account of an error in it, although it be afterwards followed up by an alias, which is served after the eighteen months have elapsed, the service of the first sei. fa. is not ■ equivalent to a presentation of the claim.

The principle of that decision meets and solves the question in this case. In that there was an error in the Christian name of the administratrix, but the writ described her as the administratrix, and was served on the person who was such. Yet, plaintiff having suggested the error, and asked for an alias sei. fa. against her by the right name, which was not served on her, and her successor in the administration having been subsequently made a party by a sei. fa., which was served on him more than eighteen months after the first grant of letters of administration, it was held there was no-valid presentation of the claim.

In the cause now under consideration, a writ which did not describe the claim, or the court in which it was sued on, after being here declared for that reason void, was, on motion of plaintiff, set aside, and a new writ was sued out and served on appellant after the eighteen months had expired. Even more plainly than in Pipkin v. Hewlett, the facts of the case did not constitute a presentation within the meaning of the statute.

Section 2542 of the Revised Code, and the case of Waller, adm’r v. Nelson, adm’r, 48 Ala. 53, to which we are referred by appellee, relate to the revival of actions, to the procedure in suits renewable against personal representatives, and not to the question of presentation of claims, or the sufficiency of evidence to entitle the plaintiffs to judgments of recovery in such causes when revived.

Eor the error shown above, let the judgmer-1' of the circuit court be reversed, and the cause remanded.