6 Ala. 416 | Ala. | 1844
-The judgment entry in this case is in an unusual form, and its true mean.ng somewhat involved; but we think it must be thus interpreted, v,z: that the defendant, instead of insisting upon a trial of the issues, withdrew b s picas, and suggested and proved to the court, that the plaint.fR had rosgned the administration of the intestate’s estate. In such case, the court was not competent to try the suggestion without the plaintiffs’ assent, and the record d.scovers uoth.ng from winch their consent is inferable. In Hatch v. Cook. [9 Porter’s Rep. 177.] this court say, that when th • dentil of either of the su.tors is suggested by the counsel who had previously represented him, the
Conceding to the judgment entry all verity, and still its recitals do not legally show that the plaintiffs were not entitled to recover; for the reason, as already stated, that it was not competent for the court, instead of the jury, to entertain and adjudicate the fact of their resignation, unless they assented to that mode of trial.
The consequence is, the judgment of the circuit court is affirmed.