Massey v. Steele's adm'r.
Supreme Court of Alabama
Error to the Circuit Court of Jefferson. Suit commenced by attachment, against the intestate of the defendant in error. The attachment was returned executed, and at the return term of the writ, a declaration was filed. At this term, John D. Phelan, an attorney of the court, and as a friend of the court, suggested to the court, that the defendant in the attachment was dead when, the attachment issued, and prayed judgment of the attachment, and that the same be quashed.
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Error to the Circuit Court of Jefferson. Suit commenced by attachment, against the intestate of the defendant in error. The attachment was returned executed, and at the return term of the writ, a declaration was filed. At this term, John D. Phelan, an attorney of the court, and as a friend of the court, suggested to the court, that the defendant in the attachment was dead when, the attachment issued, and prayed judgment of the attachment, and that the same be quashed. Subsequently, at the same term, the following entry was made: “ Came the parties by their attorneys, and the motion to quash…
1Opinion of the CourtOrmond, J.
Our first impression was, that the court below erred in receiving the plea of the defendant, to abate the suit, as it was not filed at the first term of the court after the administrator was made a party, according to the requirement of the 12th rule of practice. Subsequent reflection has satisfied us, that this question is not open for consideration in this court, as we have several times held, and especially in Cobb v. Force, Miller & Co. 9 Ala. 499, that the rule is not imperative on the primary court, but that it may for good cause permit a plea in abatement to be filed, although the…
2Cases cited1 opinion
- Cobb v. Miller, Ripley & Co.Supreme Court of Alabama · 1846
3Cited by6 opinions
- Dozier Lumber Co. v. Smith-Isburg Lumber Co.Supreme Court of Alabama · 1905
- Russell v. StateSupreme Court of Alabama · 1859
- Hawkins v. Armour Packing Co.Supreme Court of Alabama · 1894
- Perkerson v. SnodgrassSupreme Court of Alabama · 1887
- Karthaus v. Nashville, Chattanooga & St. Louis Railway Co.Supreme Court of Alabama · 1903
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