Newman v. Pryor , 18 Ala. 186 ( 1850 )

PARSONS, J.

Givens brought his action of trespass against Pryor, in the Circuit Court of Montgomery county, on the I9lh of October 1846. The declaration is in the name of Givens as plaintiff. The cause was continued at the spring term 1847. At the fall term of the same year, the plaintiff’s death was suggested and the cause continued. And at the spring term 1S4S, the following, entry was made: “ In this case the death of the plaintiff being suggested to the court, on motion James M. Newman, administrator, is made party plaintiff, and cause continued by said administrator.” It was continued at the two next succeeding terms. The writ was duly executed, but the record does not show that Mr. Pryor ever appeared, until the 8'lst October 1S49, when he filed three pleas; to each of the two first there was a demurrer, but the demurrers were overruled, and that is now assigned as error. The pleas are so perfectly the same, that it is only necessary to notice the first, the material part of which is, “that the said plaintiff as to the said several supposed causes of action in the said declaration mentioned, is not, nor ever was administrator of the goods, chattels and effects, which were of the said William T. Givens, deceased, in manner and form as the said plaintiff hath above in his said declaration in that behalf alleged, and this the said defendant is ready to verify,” &c. It is now contended that if Newman was not the proper plaintiff, the time to make that objection was when he was admitted as a plaintiff. But the cause had abated, and the defendant was out of court, subject, however, to be brought back in tbe event the cause should be revived under the statute. Until that event there was no party plaintiff in the cause. The plea states a good bar to the action of the present plaintiff. It is a matter which is pleadable, and that is the proper mode of trying it. It does not appear that the defendant was present when the present plaintiff was admitted, or that he had any notice of the motion. To hold him concluded therefore, is to deny his right to make this defence. But if he had been present, or notified, I should still think that he could deny the plaintiff’s representative character by plea. When a new party is brought in by sci.fa., or in equity offered to come in on a bill of revivor, there can be no difficulty. His liability, or his right to come in, can be appropriately contested —’but, under our statute in this case, the plaintiff came in in such a way as to afford no means of contesting his right.

It is contended that the plea does not answer the declaration, as there is no allegation in it that Newman was the administrator, &c. It appears to have been filed in the life-time of Givens. This objection to the plea is not good, we think, on general demurrer. Newman was the plaintiff when the pleas were filed.

There was a motion also to strike out the pleas. We think this motion was properly overruled. The court below had the discretion to permit the defendant to file his pleas in bar at any time before the trial, and that is a discretion which this court will not control.

The judgment is affirmed.

Chilton, J., not sitting.