Bealle v. Day , 28 Ga. 435 ( 1859 )

By the Court.

Benning, J.,

delivering the opinion.

The Court below overruled the first and fourth pleas, and postponed the second and third, to the trial of the case. Was this decision right?

The first plea was: “That there was no such record as that set forth in said scire facias.”

(1.) The record “set forth!’ in the Scifa., was the record of a case in which Oswell E. Cashin, as administrator of Gazaway P. M. Bealle was the plaintiff, and Charles T. Bealle was the defendant. - It ivas argued that Cashin, some time .before the issuing of the Sci. fa., “on motion of his own counsel, had retired from the ease,” and that one Hall had, thereupon, been made a party in his place. But what the record shows is, that Cashin “amended the declaration in said case, by making” “Hall a party plaintiff therein,” in his place ; and, that this amendment' was excepted to; and, that the exception was sustained by the Court. The amendment, then, being nullified, the case stood as it did before the amendment was made, and it stood, before that was made, as a ease in favor of Cashin, adm’r of Bealle vs. Bealle.

There was, then, such a record as that set forth in the Set fa., viz : a record in which Cashin was the plaintiff. This first plea was, therefore, not true, and, consequently, the judgment overruling it was right. ?,

The fourth plea was, that Cashin had not been removed from the administration of the estate of Bealle, and that Day was not administrator of that estate.

The argument urged against the judgment overruling this plea was stated in these words: “The evidence, if plaintiff had been required, or defendant had been permitted to produce any, would have been the judgment of the Court of Ordinary, revoking and annulling the administration of Cashin, because he had never given any bond as administrator. His administration was, therefore, void.” But there are no facts in the record for this argument to rest on. There is nothing in this record to show that the plaintiff ever offered in evidence the judgment referred to in the argument; nothing in the record to show that any such judgment exists. We, therefore, cannot yield to the argument. But, indeed, we are not ready to say that we should yield to this argument if it did appear that this judgment exists.

We merely say, however, that, with “the lights before us,” we are not able to see any error in the judgment overruling this, the fourth plea.

The Court made no decision on the second and third pleas. It refused to make any decision on them, but saved to Bealle the right to insist on the matters contained in them, on the trial of the case. And where there is no decision, there can be no case for this Court. The words of the act organizing the Court are: “All causes •of a criminal or civil nature may, for álleged error, in any decision, sentence, judgment or 'decree, ‘-be carried am,” &c.” Cobb, 448.

But, indeed, the matters of these pleas are-very proper, -as a defence to the action, and we can see little reason why the defendant in the action should not be content to avail himself of them in his defence to the action. And 'is. it by any means clear that such matters as these are .pleadable to a scire facias” to make parties ? If so, are not failure of consideration, non est factum, payment, the statute of limitations, every defensive matter, equally ..pleadable ?

(3.) Upon the whole, we decline to interfere with the action of the Court on the second and third pleas.

Judgment affirmed.