Powell v. Washington , 15 Ala. 803 ( 1849 )

CHILTON, J.

It has been the practice, under our statute, authorizing a supersedeas of executions, to consider the petition in the nature of a declaration, or allegation of facts, upon which the plaintiff predicated his claim for relief. Hence, it may be demurred to, and if the demurrer is overruled, and the defendant refuse to take' issue, the court may very properly consider the allegations as admitted, and render judgment. Shearer v. Boyd, 10 Ala. Rep. 281; Spence and Stennett v. Walker, 7 Ala. Rep. 568.

In this case, the demurrer of the defendant to the petition, was overruled, and he refused to plead over. The court entered judgment against him on the allegations of the petition.

The only question is, do the facts alleged in the petition, authorize the judgment. The ground upon which the party seeks relief in this cause, is, that Powell, the nominal plaintiff, was dead before the action brought. The judgment was by nil dicit, and the motion is now made, after the execution issued to vacate it.

Anciently, the objection could only have been taken by plea in abatement. The modern practice, however, allows the matter of the plaintiff’s death, before the action brought, to be pleaded also in bar. See Jenks v. Edwards, use, &c. 6 Ala. R. 144. In this case, however, neither mode of defence was resorted to. The defendant} Washington, appeared, but made no defence. Is it permissible for the security of Washington on the supersedeas bond, to say there was a valid defence, of which my principal might, but did not avail himself? If such defence was of a meritorious or equitable character, we will not say the security against whom the judgment has been summarily rendered, might not have relief in equity, but no such question is here involved. The defence goes merely to the capacity of one of the parties to sue. That capacity was admitted, by failing to object to it on the trial. A different conclusion would lead, in many cases, to the most ruinous consequences to parties plaintiff.

This case furnishes an example of what, in many cases, would occur. The suit was commenced in March, 1841, before a justice of the peace, and prosecuted to judgment. No objection made as to the death of the nominal plaintiff. The case is taken to the circuit court, and there another judgment was rendered, the defendant not gainsaying it. In October, 1847, when the note on which the action is founded, has been barred by the statute of limitations, and when, perhaps, the original debtor has become insolvent, the court is asked to vacate, and amend the judgment, and turn the party out of court, burdened with the accumulation of costs. Such proceeding is not sanctioned by precedent, and certainly has no foundation in reason or justice.

We are referred to Hood et al. v. Bank at Mobile, 9 Ala. Rep. 335, where it is said, a judgment rendered against a dead man, isa nullity. In such case, the representatives of the party deceased, may move to set it aside. They are not estopped., not being party or privy to the proceeding. The cases ate distinguishable. Here, the defendant admits by hid default, that the plaintiff is in life,' and the beneficial owner of the note, upon that admission, proceeds to judgment. The defendant must be held to the admission, which his failure to plead creates. And the security is as much concluded by the judgment at law, from setting up the defence, as Washington, his principal.

That the plaintiff employed counsel to defend him, and whose family was taken sick, so as to call him from the court, can have no influence on the cause at law. Such excuses are.heard in equity, where the party shows a meritorious defence, of which he has been deprived, without any fault or negligence on his part.

But it is said, no legal right was shown in Powell. The defendant did not make an issue requiring it to be shown; and we cannot tolerate that he shall make an issue now, which he should have made some six years before, when the suit was first tried, but did not.

Let the judgment be reversed, and the cause remanded.