Dilbone v. Moorer

COLLIER, C. J. If the question were res integra, whether the institution of a suit against an administrator, and voluntarily submitting to a non-suit, was a sufficient presentation of the claim, so as to prevent the bar of the statute of non-claim from being successfully pleaded to a subsequent action, we should be inclined to hold the affirmative. But this precise point was ruled otherwise in Bigger v. Hutchings and Smith, 2 Stew. Rep. 448, and this case has been too often recognized to be now departed from. See Garrow v. Carpenter and Hanrick, 1 Port. Rep. 359; Jones’s ex’rs v. Lightfoot, 10 Ala. Rep. 17; Boggs’s adm’rs v. The Br. Bank at Mobile, 10 Ala. Rep. 970. If, however, the plaintiff suffers a non-suit under the ruling of the court against his right to recover in the case as presented, or if the defendant defeats a recovery, or vacates a judgment upon appeal, writ of error or otherwise, for reasons which are not fatal to the successful prosecution of another action for the same cause, we should think that the first suit, if sufficiently descriptive of the claim, would be regarded as a good presentment. We are aware of the extent of the de [428] cision in Boggs’s adm’rs v. The Br. Bank at Mobile, supra, and are impressed with the conviction that it proceeds from a principle almost, if not quite too stringent; yet as the facts were peculiar, and not altogether parallel with those in the case before us, we do not feel called on to give it a critical examination, or determine its influence as authority when applied to an analogous case. The bill of exceptions does not inform us under what circumstances the plaintiff was non-suited, but merely that the suit was thus disposed of. In obedience to the rule which requires all reasonable presumptions to be made which are consistent with the record, to sustain the judgment of the primary court, we may intend that the non-suit was voluntary, and under such circumstances as, according to the case cited from 2d Stewart, would indicate a withdrawal of the claim, and a waiver of its presentation. From this view, it results that the ruling of the circuit court is agreeable to law, and its judgment is therefore affirmed.