Morrison v. Morrison

3 Stew. 444

• Court: Supreme Court of Alabama
• Decided: January 15, 1831
• Status: Published

Opinion

By JUDGE COLLIER.

The first point supposes a fact which the record does not sustain, neither the demurrer of the plaintifi' or defendant seems to have been passed on by the Circuit Court. But as we are informed that other cases await the decision of this, we will consider it upon the state of fact shewn by the record. This Court |have repeatedly decided, that when the defendant pleads ¡and demurs to the same point of the declaration, and the tissues of fact are tried, he shall be supposed lo have waived his demurrer. The same strictness in pleading is not required in cases brought fromjustices of the peace, by appeal to the Circuit or County Court, as is necessary in oases in which these Courts exercise original jurisdiction. The Court is invested with a control of the pleadings, of its mere motion, and the issue is required to be made up under the direction of the judge. If the Court in the exercise of this power, acts with caution so as not to com-promit the rights of either of the parties, neither has a right to complain. It is not a correct practice in appeals, to drive a party to his demurrer; it is the duty of the Court to scan the pleadings offered by the parties, and to expunge any plea which does not present issuable matter. From the omission of the record to shew a disposition of the fourth and fifth pleas, we might infer that the Court refused to regard them as meritorious, or else considered them as superfluous. If it was competent for the in error to impugn the verity of the decree or order, for' matters extrinsic', the plea of nil debet and non assump-sit, both of which were accepted, would allow the intro-Auction of all proof that could be adduced under the fourth and fifth pleas; so that the plaintiff,:by the omission of the Court to pass on them, cannot have been injured. In Bond v. Hills & Fay,

a we have decided that where a plea amounting to the general issue was not disposed of, if the case was tried on the general issue, this was not error, because it would be presumed that the defendant had the full benefit of it on trial.

2d. We think it unquestionable that an action of debt will lie on a decree or order of the Judge of the County Court, directing the payment of a sum of money by an administrator, which does not appear from inspection To be void. The decree is not set out so as to enable us to determine whether it be void; true there is a certificate of the Clerk of the County Court, professing to describe it, but as there is no authority for its insertion in the record, we cannot regard it. If the decree be made unadvisedly, it will continue operative until vacated by a higher tribunal, and the legislature in making it the subject of revision, upon appeal, or writ of error, have invested it with the characteristics of a record; and when sued on, it will be held equally conclusive and resistless. It is argued for the plaintiff in error, that if the decree or order be entitled to the dignity of a record, that an execution may issue to compel its satisfaction from the Court that pronounced it. This is by no means a necessary consequence, the right of a Court to issue execution, depends upon the extent of its powers and the manner of its organization. This Court once furnished an instance of the truth of this proposition; for several years after it was organized, it had no authority to issue executions for costs. It is observable that the decree was rendered in October, and the suit commenced in December, 1829, before there was any law in existence, which authorized the issuance of an execution upon it.

Sd. The form of a judgment against an administrator, must always depend upon the nature of the liability, and will be either de bonis intestatis or de bonis propriis, as this may render proper. We need not employ illustration upon this head, for the purpose of ascertaining the correctness of the judgment, for the act in regard to in-estates, declares that every executor or administrator, after final apportionment of the estate among the-creditors of the testator or intestate, shall be liable to the cre(j¡j-ors for their respective shares.a The record does not discover on what occasion the Judge of the County Court rendered the decree, nor is thé decree set out in the record, that we may learn what are its terms; we may however very well infer that it was such as was ' contemplated by the act referred to, and in accordance with previous decision; we must, intend everything compatible with the record, which will sustain the judgment If then the decree was rendered upon the final apportionment of an insolvent estate, and the reverse no where appears, the judgment pursued the liability, was regular, and must therefore he afiirmed.

Decree affirmed.

Ante 283.

Lawsof Ala $29.