Gillespie v. Campbell

43 So. 28, 149 Ala. 193, 1907 Ala. LEXIS 268

• Court: Supreme Court of Alabama
• Decided: February 7, 1907
• Status: Published

Opinion

DOWDELL, J. —

The complaint was on the common counts. We fail to see any merit in the demurrer to the complaint ,as amended.

The account as filed in the probate court was not verified as required by the statute. The verification omitted the words, “after allowing all proper credits.”— Section 133, Code 1896. But by the provisions of this statute this defect or insufficiency of the verification may be cured by amendment.

In Kornegay v. Mayer, 135 Ala. 141, 33 South. 36, it was decided that the highest and best evidence of the filing and docketing of the claim in the probate court is the docket entries there made.

What the administrator paid some other person for Avaiting on the deceased during his last illness Avas Avholly irrelevant and immaterial. It was error to admit tixis evidence against the objection of the defendant, and for this error the case must be reversed. As the judgment must be reversed, and the cause remanded for another trial, it is unnecessary to consider the question of the court’s receiving the verdict after the jury had been discharged by the clerk without an order of the court.

Reversed and remanded.

Tyson, C. J., and Anderson and McClellan, JJ., concur.