Brown's Heirs v. Powell
Supreme Court of Alabama
Appeal from Probate Court of Tuskaloosa. Tried before Hon. William Miller. Tbe decree in this case was rendered by tbe probate court of tbe county of Tuskaloosa, ordering the sale of tbe lands of tbe estate of John A. Brown, deceased, for division, because the same could not be equitably divided amongst the lieirs. The application was made by the appellee, the administrator de honis non of said estate.
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Appeal from Probate Court of Tuskaloosa. Tried before Hon. William Miller. Tbe decree in this case was rendered by tbe probate court of tbe county of Tuskaloosa, ordering the sale of tbe lands of tbe estate of John A. Brown, deceased, for division, because the same could not be equitably divided amongst the lieirs. The application was made by the appellee, the administrator de honis non of said estate. The application was resisted by appellant, one of the beirs at law of said deceased. On the day appointed for the hearing of such application, tbe said appellant, Newburn H. Brown, appeared and…
1Opinion of the CourtPeck, C. J.
1. The first error assigned raises the question as to the propriety of the decision of the court, in striking out the plea in abatement. As, after plea in bar to the action, the defendant can not plead in abatement, so we hold, that if, after the defendant has filed a *157plea in abatement, and before it is disposed of, he pleads in bar to the action, and under such plea the parties proceed to take depositions and to prepare the case for trial on the merits, he should not be permitted afterwards to insist on his plea in abatement, but should be held to have waived the same. To hold otherwise,…
2Cited by5 opinions
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