Auld v. Schmelz

1. While there are some exceptions to the general rule that requires that estoppel or res judicata be specially pleaded in the trial court, there is no exception to the rule that estoppel or res judicata must be first urged and ruled on by the trial court before the Supreme Court will decide such questions.

2. Since the law authorizes a temporary administrator to sue to collect debts due the estate or to recover personal property of the estate, persons so sued may plead any proper setoff or counterclaim and obtain judgment therefor against the estate represented. The priority of the creditor's…