Stewart v. Lasseter & Co.

59 So. 233, 4 Ala. App. 665, 1912 Ala. App. LEXIS 369

• Court: Alabama Court of Appeals
• Decided: June 19, 1912
• Status: Published

Opinion

de GrRAFFENRIED, J.

1. It the case of Evans, Adm’r. v. Norris Stodder & Co., 1 Ala. 511, the Supreme Court, through Ormond, J., said: “The plea of the statute of nonclaim casts on the plaintiff the necessity of entitling himself to his action, bv proving a demand of the representative of the deceased, within 18 months after the granting letters testamentary or letters of administration. To hold otherwise would be to require what in most cases would be impossible for the defendant to prove — that the claim was not presented within the time required by law.”

In the case of Mitchell et al., Adm’rs v. Lea, Adm’r, 57 Ala. 46, the Supreme Court through Brickell, C. J., says: “The denial of the failure to make presentment (that is, the taking of issue by a plaintiff upon a defendant’s plea setting up the statute of nohcláim) involves the affirmation of presentment; and the plaintiff stands in the position óf a party asserting an affirma-' tive fact he is bound to prove. The affirmative fact can only be proved by evidence of the time of the grant of letters of administration and a presentment within 18 months thereafter.”

The two cases above referred to were cited lay the Supreme Court with approval in the case of Kornegay v. Mayer, Adm’r, 135 Ala. 141, 33 South. 36.

In the present case the appellant filed a plea of the statute of nonclaim. The appellees took issué upon that plea. The burden was therefore cast upon the appellees, plaintiffs in the court below, under the express language of the Supreme Court in the above case of Mitchell v. Lea, of proving the time of the grant of letters of administration, and that, the claim, the subject of the suit, was presented within 12 months (the period was formerly 18 months) thereafter. Code 1907, § 2590.

The appellees offered evidence of the time when the claim was filed in the office of the judge of probate, as provided in section 2589 of the Code of 1907; but they failed to offer any evidence tending to show when letters of administration were issued, and there is no evidence whatever in the bill of exceptions tending to show when such letters were issued. The appellees, therefore, failed to meet the plea of the statute of non-claim; and the court, for this reason, committed reversible error in giving to the jury, at the written.request of appellees, the affirmative charge in their behalf.

2. If the evidence in this case is to be believed, the account of the appellees was converted from an open into a stated account before the death of appellant’s intestate. It seems to us that the evidence upon this subject is too plain to require discussion at our hands/

3. The evidence in the bill of exceptions presents to us for our determination only the subjects above discussed. Counsel in their briefs discuss and attempt to raise the question as to whether the withdrawal from the files in the probate office, by appellee’s counsel on the day this suit was brought, of the statement of the claim which had been filed in the probate office under section 2590 of the Code, and the failure to return the claim to the files, constituted an abandonment of the claim.—Floyd v. Clayton, 67 Ala. 265. The bill of exceptions fails to inform us as to the time when letters of administration were granted, whether the claim was., filed or the suit brought within 12 months thereafter, or whether the attorney for appellees was authorized to withdraw the claim from the files, or, if so, to retain it in his possession. This question, therefore, is not presented to us for determination.

For the error pointed out, the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.