Winslett v. McLemore's Adm'rs , 6 Ala. 416 ( 1844 )

COLLIER, C. J.

-The judgment entry in this case is in an unusual form, and its true mean.ng somewhat involved; but we think it must be thus interpreted, v,z: that the defendant, instead of insisting upon a trial of the issues, withdrew b s picas, and suggested and proved to the court, that the plaint.fR had rosgned the administration of the intestate’s estate. In such case, the court was not competent to try the suggestion without the plaintiffs’ assent, and the record d.scovers uoth.ng from winch their consent is inferable. In Hatch v. Cook. [9 Porter’s Rep. 177.] this court say, that when th • dentil of either of the su.tors is suggested by the counsel who had previously represented him, the court will, of necessity, ascertain the fact in some other manner than by plea; but when the suggestion of the plaintiff’s death is not admitted by the person representing him, the suit can only be arrested by plea puis darrein continuance. This case was one where the plaintiff died, pendente lite, and though the facts are not identical with the present, yet the principle determined shows, that the fact, whether the plaintiffs were ever administrators, or, being administrators, resigned their trust previous or subsequent to the commencement of the suit, is triable by a jury upon an issue formed for that purpose.

Conceding to the judgment entry all verity, and still its recitals do not legally show that the plaintiffs were not entitled to recover; for the reason, as already stated, that it was not competent for the court, instead of the jury, to entertain and adjudicate the fact of their resignation, unless they assented to that mode of trial.

The consequence is, the judgment of the circuit court is affirmed.