Acre v. Ross

3 Stew. 288

Opinion

By JUDGE TAYLOR.

It is unnecessary to enter into a labored argument, to prove that the 7th section of the act of 1819, uto regulate the proceedings in the Courts of law and equity in this State,’5 does not divest the Courts of a general superintending control, over the pleadings and other proceedings of suitors within those Courts. To sustain a contrary position, would divest our judicial tribunals of a power, essential to the object for which they have been erected, that of doing justice; and leave them the proper subjects for contempt and ridicule. Accordingly, the uniform practice under this statute has been, to set aside office judgments, whether of default or non-suit, upon cause shewn at the succeeding term, by the party, plaintiff or defendant, affected by the judgment. A motion to set aside such judgment, is always addressed to the sound discretion of the Court, 'from the exercise of which, there can be no appeal.

If the Court can set aside such judgment at all, it is certain it can do so after an order for perfecting the judgment, and even after such order has been acted on; especially during the term at which it was made. The Court has complete power over its proceedings during the term, and may correct or alter its judgments and proceenings. But this is a point so plain, that it is useless to dwell upon it.

That the discretion of the Court goes no further than to admit pleas to the merits, after a judgment by default, has not been shewn: on the contrary, the cases cited by the defendant’s counsel, from 1st Bosanquetand Buller,

Footnotes

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a are to the point in supporting a different doctrine. It is true that a Court will be unwilling to deprive a party of an advantage which he has thus obtained, for the purpose of admitting any other plea, than one which brings the merits in controvers3r. It may however be doubted whether the plea of the statute of limitations, when interposed by an executor or administrator, will not be viewed more favorably than in other cases. A representative might possibly jeopardize his own interest, bj' neglecting such a defence. It was certainly within the discretionary power of the Court to receive the plea in this instance.

As regards the second point, it cannot now be made before this Court. If the plaintiff intended to rely upon his demurrer to the plea of the defendant, in the appellate Court, he should not have withdrawn it, and formed an issue to the country, after it-was overruled. By doing this, the cause stands precisely as if no such demurrer had ever been filed, and presents no matter for investigation here. There can be no doubt however, that the presentment of a demand to one of two representatives, is notice to both, and on the trial of the issue, proof would have been admissible, that the plaintiff’s account had been presented to the co-administratrix in her life time. It appears from the bill of exceptions, that the defendant and his co-administratrix were appointed and qualified on the 17th day of April, 1824; that they gave the notice required by law, in the “Mobile Commercial Register,” a newspaper printed in the city of Mobile, within the time prescribed by the statute, which notice stated that “letters of administration were, on the 17th instant, granted to subscribers,” &e. and which notice was dated “May without specifying the year; the paper however in which the publication first appeared, was issued in May, 1824, and the letters testamentary, bore date the third Saturday in May of that year, which was proved to have been the 15th, and not the 17th, as slated in the advertisement.

Upon this evidence, the Court charged the jury, that <£the difference between the date of the letters and the time stated in the advertisement, was an immaterial difference, and'did not on that account, destroy the defence.” It is certain that in this charge there is no error. What injury could possibly have resulted to the plaintiff, or any other creditor of the decedant, from this mistake? None cah be conceived. If errors of this kind could so far jeopardize the interests of representatives, as is contended f or by the plaintiiFs counsel, a mere mistake committed by a clerk in the hurry of business, might indeed produce disastrous consequences. Nor can the omission of the year in the date be at all material. All persons interested, were as perfectly informed to whom to make application, as the representatives of Turner Starke, deceased, as they could have been by any possible additions to the advertisement a'sit was published.

It is not considered necessary to decide, whether or not a failure to advertise according to the statute, would preclude a representative from pleading the statute of limitations, or as it is usually called of non-claim. The judgment must be affirmed, and in this opinion the Court is unanimous.

Judgment affirmed.

CreNsiiaw, not sitting.

Page 228.