Hill v. Huckabee

BRICKELL, C. J. The second, third, and fourth pleas present no defence to the plaintiff’s action, and were demurrable. The note on which the suit is founded is payable to the plaintiff individually. The complaint in effect avers that it is assets of her intestate, in her hands to be administered. Suit [158] thereon, in her representative capacity, accompanied by this averment, was proper. Arrington v. Hair, 19 Ala. 243. To such suit the plea of ne unques administrator is not allowable. That plea, as was determined by this court, in the case of Riddle v. Hill, last term, is a defence only when at common law the plaintiff was bound to make proferí of his letters, as his authority to sue. Proferí was never necessary, except when the cause of action accrued to the intestate. The making a contract with a personal representative is an admission of the representative capacity, dispensing with the necessity of proferí. . The plaintiff replied separately to the pleas, disclosing her appointment as administratrix by a court of competent jurisdiction To these replications the defendants demurred, and the demurrer was sustained as to the replications to the third and fourth pleas. The ground of demurrer is, that administration was granted the plaintiff by a court of this State, during the war, and is founded on former decisions of this court, declaring judicial proceedings had in this State, during the war, were to be esteemed as quasi foreign. These decisions are in conflict with the decision of the supreme court of the United States in the case of Horn v. Lockhart (17 Wall. 570), which this court at the last term announced its purpose to observe as a correct solution of this question. Riddle v. Hill, supra ; Powell v. Young ; Tarver v. Tankersly, last term. The replications were of consequence an answer to the pleas, if they had been good. The charge given by the court, that the jury should find for the defendants, was doubtless influenced by the same considerations controlling its rulings on the pleadings. The point of controversy between the parties, in the circuit court, seems to have been the validity of the judicial proceedings under which plaintiff derived her authority as administratrix, and her authority to make sale of the personal property of her intestate. These proceedings were supposed to be invalid, because the proceedings of a court recognizing the authority of a government in hostility to the government of the United States. In the cases to which we have referred, this court declared, in obedience to the decisions of the supreme court of the United States, that such proceedings, where they did not offend the Constitution or laws of the United States, or impair the just rights of the citizens thereunder, were to be esteemed valid. We reaffirm those decisions, as announcing the principle by which we propose to be guided. An observance of the decision of this court in Riddle v. Hill, at last term, will enable the circuit court to dispose of all the questions this record presents. We decline passing on the correctness of the refusal of the [159] circuit court, to allow the amendment of the complaint as proposed by the plaintiff. That amendment will not probably be desired by the plaintiff, under the decision we have made on the pleadings. The judgment is reversed and the cause remanded.