Witherington v. Brantley , 18 Ala. 197 ( 1850 )

PARSONS, J.

Paul, to use of Brantley, commenced his action against Witherington as administrator of Dukes, before a justice of the peace in Conecuh county, and recovered a judgment. Witherington appealed to- the Circuit Court of that county, giving J. C. King as surety in the appeal bond.

After the cause reached the Circuit Court, it was suggested, but it is not said by whom, that Witherington had resigned the administration, and-thereupon a sci.fa. was awarded against the administrator de bonis non. It does not appear at whose instance this was done, nor who the administrator de bonis-non was. But the clerk afterwards issued the sci.fa. against Isaac H. Betts as the administrator de bonis non, which was served on him. Mr. Betts demurred to the sci. fa. and his demurrer was sustained, which, among other things, will appear by the judgment entry, and that is as follows:

“Abram Paul,use of HarrisBrantley, vs A. L. Witherington, Adm’r.

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r 7 , „„ Judgment,March 20th, 1850.

“ In this cause, this day came the parties by their attornies, and the defendant, Isaac H. Betts, demurs to the sci.fa., which demurrer was sustained by the court, and the defendant, Augustus L. Witherington, having failed to say any thing in bar or' preclusion of the plaintiff’s action : It is therefore considered by the court, that the plaintiff do have and recover of the defendant", Augustus L. Witherington, administrator, and' John C. King, his security in the appeal bond, the sum of four dollars and thirty cents for his damages, besides the costs in this behalf expended, for which execution'may issue.”

Mr. Betts is not a party to this writ of error, and it is no question in this case whether the demurrer was properly sustained or not. It is sufficient to say that he was not made a party in the cause, nor was Witherington ever discharged from it. On the contrary, the latter, by his attorney, appeared at the trial as the judgment entry shows. In this state of the proceedings, we think Witherington is still a party and that the plaintiff below had a right to proceed against him as such. But although the plaintiff below did- no act, so far as he went, which could have the effect of discharging Witherington from the suit, yet the latter had the right to plead that he had duly administered, or that- he had passed the assets to the administrator de bams non, and thus the plaintiff’s suit against him would have been barred, unless the plaintiff could successfully controvert the facts pleaded. — Skinner v. Frierson & Crow, 8 Ala. 915.

The plaintiff below recovered of Witherington, administrator, and his surety, the sum of four dollars and thirty cents and the costs. The sum recovered and the costs exceed the amount of the penalty of the bond, which is $5 25. The surety was not liable beyond the amount of his bond, and there is consequently error in the judgment. But as this is a clerical mis-1 entry, the amendment might be made here under the statute.— McBurnet & Kerr v. Breed, 6 Ala. 476. There is, however, an error in the judgment which can only be corrected by another trial. The judgment final was rendered because the defendant below “ failed to say any thing in bar or preclusion of the plaintiff’s action.” The action was not founded on a writing for the payment of a sum of money, but on an open account. As the sum sued for was less than twenty dollars, a jury was not required, but the court should have heard the evidence and decided the matter of controversy. — Kennon v. Henderson, 6 Ala. 132. It cannot be infered from the fact that the defendant failed to say any thing in bar, See. that he intended to confess judgment. If that had been the case, the judgment would have been in a different form. The judgment is reversed and the cause remanded-