McVay's Admr's v. Krebs

Supreme Court of Alabama

McVay's Admr's v. Krebs

7 Ala. 456

DecidedJanuary 15, 1845

StatusPublished

This text of 7 Ala. 456 (McVay's Admr's v. Krebs) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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McVay's Admr's v. Krebs, 7 Ala. 456 (Ala. 1845).

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Opinion

■ GOLDTHWAITE, J.

— Both parties concur that the record of the Orphans’ Court appended to this transcript, cannot be noticed in the present condition of the record; we shall, therefore, decline any consideration as to the effect it would have had, if produced, to sustain an issue of nul tiel record upon the plea of insolvency. With respect to the statement in the judg-[457]*457merit entry, that this plea was overruled, we think it can only mean, that the Court declared it bad, as a defence. It is true, no demurrer was interposed, but this circumstance only makes the error of the proceeding more apparent, as a demurrer was the only regular mode of testing the legal sufficiency of this plea. The concession that it is good, in effect, disposes of the only question raised.

The judgment must be reversed, and either remanded for further, proceedings, or here entered, referring the judgment to the County Court, at the option of the defendant in error.

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■ GOLDTHWAITE, J.

— Both parties concur that the record of the Orphans’ Court appended to this transcript, cannot be noticed in the present condition of the record; we shall, therefore, decline any consideration as to the effect it would have had, if produced, to sustain an issue of nul tiel record upon the plea of insolvency. With respect to the statement in the judg-[457]*457merit entry, that this plea was overruled, we think it can only mean, that the Court declared it bad, as a defence. It is true, no demurrer was interposed, but this circumstance only makes the error of the proceeding more apparent, as a demurrer was the only regular mode of testing the legal sufficiency of this plea. The concession that it is good, in effect, disposes of the only question raised.

The judgment must be reversed, and either remanded for further, proceedings, or here entered, referring the judgment to the County Court, at the option of the defendant in error.

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7 Ala. 456, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcvays-admrs-v-krebs-ala-1845.