Howle v. Edwards , 113 Ala. 187 ( 1896 )

HEAD, J.

When this case was here on a former appeal (97 Ala. 649), it was said the plaintiff, the widow of the deceased owner of the note in suit, could not maintain the action by virtue of her right, as widow, to claim the note as exempt property, without averment and proof of the prior selection of the note as exempt property, in the mode prescribed by the statute; citing Tucker v. Henderson, 63 Ala. 280. That decision was without reference to the act of February 12, 1885 (Acts of 1884-85, 114), as amended by the act of February 12, 1887 (Acts of 1886-87, 112), evidently for the reason that the complaint, as then before the court, could not bring the case within its influence. By one section of that act, which was substantially carried into section 2564 of the Code of 1886, the widow was expressly authorized to sue in cases such as the complaint, as amended, now discloses. This provision (section 2564) was not impaired by the amendatory act of February 12, 1887, supra. The case of Tucker v. Henderson, supra, was decided upon the exemption statute of 1873.

Upon the allegations of the present complaint, we' hold the action was properly brought by the widow, and the demurrers, insisting 'to the contrary, were properly overruled, and the demurrers to pleas A and B, properly sustained.

The case was tried upon issue joined upon the general issue and the first, second and third pleas. There was no sworn plea denying plaintiff’s beneficial ownership of the note sued on, and there is, hence, no open question of her right to maintain the suit. The facts averred in the complaint, showing her succession, by operation of the statute, to the beneficial ownership and right of reduction to possession, must be deemed as conclusively established by the failure to deny them under oath, as if her claim to the- succession had been by virtue of alleged assignment qf the note, executed to her by the payee in life. — Rule of Practice 29, Code, p. 810. The evidence, therefore, to which exceptions were reserved, tending to prove the facts alleged touching her ownership and right to sue, or offered by the plaintiff for that purpose, could have done the defendant no conceivable injury.

There was issue between the parties, upon defendant’s allegation that he was a surety merely upon the note sued on, &c. The note not disclosing otherwise, he was, prima facie, a principal debtor with R. B. Edwards ; the burden being upon him to show the contrary. Upon that issue, the questions put to him by plaintiff, on cross-examination, to which objections were made, were competent, and tlie court committed no error in respect to them, or the answers thereto.

The facts involved in, and supporting, the oral instruction of the court, to which exception was reserved, were confessed by the want of sworn plea, so the court could properly charge upon them without hypothesis.

The several charges given by the court, at the request of the plaintiff, were free from error; and there was no error in refusing either of the charges requested by the defendant.

We are not prepared to say the circuit court did not exercise a sound discretion in overruling the motion for a new trial.

To obviate any misleading tendency of our opinion pronounced when the cause was formerly before us, in reference to the competency of the defendant, Howie, to testify to transactions with the deceased, J. W. Edwards, we remark that a careful reading of the opinion will show, that what was said in favor of his competency rested upon the postulate that the estate of J. W. Edwards could not be affected by the result of the suit, which postulate, itself, resulted from the principal declared that the widow could not, upon the then allegations of the complaint, sue, as the legal successor of the deceased, through the operation of the exemption statutes, without a selection of the claim, as exempt, in a mode prescribed by statute.

We have seen, that, in cases like the present, as disclosed by the special facts alleged in the complaint and confessed by the special pleas, she may sue by the express authority of section 2564 of the Code of 1886, and it can not be held that a lawful recovery by her, in such an action, so expressly authorized by statute, would not preclude the personal representative from a subsequent recovery upon the note. The legal effect, therefore, necessarily is, that the widow lawfully suing, under the statute, is pro hac vice the representative of the deceased. She sues to enforce the rights of the deceased, to the end that his assets may be realized and the direction given to them which the statute prescribes — that they may go to his widow and minor children for their support. It is a limited process of administration which the widow is authorized to carry on, and the character she assumes can not be other than an administrative and representative one. The defendant was, therefore, incompetent to testify, on the trial of the action, as to transactions with the deceased.

Affirmed.