Reid v. Nash

PHELAN, J. The'demurrer to the declaration of plaintiff was properly overruled. It sufficiently avers that a judgment bad been rendered against the administrator, James H. Owen, as such, to be levied de bonis iniestatis. It was not necessary to go further in a declaration, whether against tho administrator himself or a surety.—Thompson v. Searcy, 6 Por. 396; Wil [738] liams v. Hinkle, 15 Ala. 713. If upon the trial it should appear, as in the case last cited, that the judgment was really not a proper judgment against the administrator as such, the surety would then be at liberty to make the question. The record shows that pleas were filed, and demurred to; we must, therefore, intend that these pleas which are found in the record were the pleas that were filed, although not signed by counsel, nor endorsed by the clerk as filed. The first and second pleas, nil débet and performance generally, to debt on a bond with condition and special breaches assigned, are too manifestly demurrable to need observation.—Tait v. Parkman, 15 Ala. 253. The third plea simply avers that the debt on which the judgment against the administrator was rendered, was not a proper debt or charge against the intestate, or defendant as his administrator. This naked averment, without facts, can amount to nothing, as an answer to the declaration. The consent to “plead in short,” where a demurrer is interposed, covers only formal matters, and not matters of substance. The fourth plea avers that the judgment mentioned in the declaration was confessed by the said administrator, and was not founded on any debt or proper charge against the intestate.— Like the third, it is the mere averment of a conclusion without facts.. Even fraud is not imputed. This plea was of course defective, in like manner with the last. The fifth and sixth pleas are in these words : “5. That the said estate of the said John M. Owen, deceased, has been by the Orphans’ Court of Sumpter County aforesaid duly declared insolvent, according to the statute in such cases made and provided, and that the same has not yet been settled up and closed, but that the same is now in a course of settlement in the Probate Court of said county.” “ 6. That said estate of the said John M. Owen was by the said Orphans’ Court &c., duly declared insolvent, according to the statute, &c., on the day of , and that said declaration of insolvency continues in all respects in full force; and that said Thomas C. Crimm, the plaintiff in said judgment, wholly failed and neglected to file his judgment, or any transcript or statement thereof, in said Orphans’ Court, within six' months after such declaration of insolvency.” [739] The fifth plea does not say when the estate of John M. Owen was declared insolvent. If after the judgment, it would not affect it any way ; and even if before, and the administrator neglected to plead that, it could not be made available by itself as a defence to this action. The same may be said of the failure of the plaintiff to present his judgment as a claim against —tho insolvent estate :• it is no defence to this action. The seventh plea is in these words : “ 7. The said James H. Owen, administrator as aforesaid, has fully administered and paid out, according to law and the statute in such cases made and provided, all the assets of the said John M. Owen, deceased, which came to his hands to bo administered.” The defect of this as a plea of plene administravit arises from the want of an averment that the administration of the assets was made before this suit was brought. If made after, it would be no answer. Had the plea been pleaded by name, as the record states that the pleas were taken “in short by consent,” all material averments would|have been considered as duly made. But when the plea is drawn out to some extent, the want of a material averment makes it demurrable, even when it is pleaded “in short by consent” ; and that is the case with all the pleas in this record, except the plea of nil debet, which is pleaded by name. Merc formal parts only arc considered to be dispensed with by the consent given, and not matters of substance, when pleas are taken “in short by consent,” unless it is where a well known plea is pleaded by name.—Gayle v. Randall, 4 Por. 232; Pollard v. Staunton, 5 Ala. 451. We find no error in the record, and tho judgment below is affirmed.