Massey v. Steele's adm'r.

ORMOND, J. Our first impression was, that the court below erred in receiving the plea of the defendant, to abate the suit, as it was not filed at the first term of the court after the administrator was made a party, according to the requirement of the 12th rule of practice. Subsequent reflection has satisfied us, that this question is not open for consideration in this court, as we have several times held, and especially in Cobb v. Force, Miller & Co. 9 Ala. 499, that the rule is not imperative on the primary court, but that it may for good cause permit a plea in abatement to be filed, although the first term may have passed. That is in effect, that the court may in the exercise of a sound discretion. permit the plea to be filed after the time for filing it has passed. Such being the case, it is not revisable in this court. We think the demurrer was properly sustained to the replication of the plaintiff. Waiving the consideration of the ¿right of the plaintiff to reply as an answer to the fact alledged sin the plea, matter of record in the same cause, the fact ■therein alledged was no answer to the plea. First — Because a dead man could not appear by attorney; and secondly, because the record shows that the attorney did not profess to appear for the defendant, but as amicus curia.. The statement of the fact, that the parties appeared by their attorneys, ■is controlled by the record showing the character of the appearance, and in addition, states an impossibility, an appear,-ance for a dead man. The defendant was entitled to his costs. Such would be the rule in England, [Tidd’s Prac. 589] and our statute is much mor>e comprehensive than the statute of Gloucester, as [343] it declares that in all cases in civil actions, the party in whose favor judgment shall be given, or in case of non-suit, &c. shall be entitled to full costs. Let the judgment be affirmed.