Fox v. Lawson

44 Ala. 319

• Court: Supreme Court of Alabama
• Decided: January 15, 1870
• Status: Published

Opinion

PETERS, J.,

(after stating facts as above.) — The first objection to the note was untenable. It was not barred by the statute of limitations. The note became due on the first day of March, 1860. In Coleman v. Holmes, decided at the present term, it has been settled that the time elapsing between the 11th day of January, 1861, and the 21st day of September, 1865, is to be deducted from the period necessary to constitute a bar. The statute of limitation in this case requires a lapse of six years, from the falling due of the note, before the bar is perfected. The period above mentioned being deducted, the time elapsed is less than six years. This defeats the bar. —Rev. Code, §§ 2898, 2901; Coleman v. Holmes, January term, 1870.

The second and third objections are not well taken. The first affidavit made in the State of Mississippi was sufficient, as a basis for the amended affidavit made before the judge of probate of Perry county, in this State, before the final decree. The latter affidavit complied with all the essential requirements of the statute, and it was sufficient. • Rev. Code, §§ 2196, 2198; Norvill v. Williams, Adm’r, 35 Ala. 551; Lay v. Clark’s Adm’r, 31 Ala. 409.

The court below, therefore, erred in refusing to allow the claim of the appellant, Fox, and that decree is reversed, and the cause is remanded, with instructions to the court below to proceed in the further adjudication of the matters involved in this suit, in conformity with this opinion, according to law.

. The appellee, as administrator de bonis non of the estate of Osmond T. J ones, deceased, will pay the Costs of this appeal in this court and the court below.