50 Ala. 579 | Ala. | 1874
This is a bill to enforce the allowance of a set-off against a judgment at law. The appellant, Walker, is the complainant in the court below; and the administrator of Henry B. Wigginton, deceased, is the principal defendant. The other defendant, Harrison, is merely a nominal party; no decree can be rendered against him, and none in his favor. The cause was submitted on the bill, answer, amended answer, exhibits, agreement of counsel, and depositions taken on both sides. There was no demurrer, or motion to dismiss for want of equity; but pleas for defendant Wigginton were incorporated in his answers, setting up a want of sufficient diligence to sue the maker of the note indorsed by Wigginton to Walker, in time so as to bind Wigginton on his indorsement, and the statute of non-claim.
The case made by the bill and answer is substantially this : On the 22d day of December, 1865, the complainant, Walker, executed to Henry B. Wigginton, then living, two promissory notes of that date; the one for $257.00, due one day after date, and the other for $1,250.00, due twelve months after date; both payable to said Wigginton. After this, in 1866, Wigginton died, intestate ; and Relfe, who has been succeeded by Newman, the appellee,, was duly appointed administrator of his estate. This appointment was made on June 22, 1866. After Relfe’s appointment, he sued Walker, some time in 1867, on the notes above said, in the circuit court of Lowndes county in this State, and prosecuted this suit to judgment in said circuit court, at the November term thereof, 1867. To this suit Walker made no defence. On this judgment, thus obtained, execution was issued against Walker, and levied on his land to satisfy the same. Walker then filed this bill, praying an injunction to stay said execution, and for an account to be taken to ascertain what sum of money was due to him from Wigginton at his death, on a certain indorsement of a promissory note, made by one Tarver, and payable to Wigginton, bearing date January 1, 1861, for $6,400, and falling due on the 1st day of January, 1862; which note Wigginton during his life, on
The judgment of the court below is affirmed, with costs.