King v. Armstrong
Supreme Court of Alabama
Writ of Error to the Circuit Court of Marengo. Before the Hon. E. Pickens. Motion for judgment by the defendant in error, against David Curry, late sheriff of Marengo, for failing, by proper diligence to make the money on an execution. Pending the motion, Curry died, and the plaintiff in error, as his administrator, appeared in his proper person, made himself a party defendant by consent, and waived all irregularity arising therefrom.
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Writ of Error to the Circuit Court of Marengo. Before the Hon. E. Pickens. Motion for judgment by the defendant in error, against David Curry, late sheriff of Marengo, for failing, by proper diligence to make the money on an execution. Pending the motion, Curry died, and the plaintiff in error, as his administrator, appeared in his proper person, made himself a party defendant by consent, and waived all irregularity arising therefrom. And thereupon came a jury, &c. and verdict and judgment for the plaintiff. The error assigned is in reviving the proceeding, and rendering judgment on motion,…
1Opinion of the CourtCollier, C. J.
We have repeatedly held, that the summary remedy at the suit of a bank lies only, against the debtor personally, and therefore his personal representatives are not thus suable. See Murphy’s adm’rs v. The Br. Bank *294at Mobile, 5 Ala. Rep. 421, and subsequent cases, in which the same rule is applied to motions against sheriffs and other officers. If such a proceeding cannot be instituted against an executor or administrator, it certainly cannot be revived against them upon the death of a testator or intestate. The statutes which authorize the revival of a suit against the representative of a…
2Cases cited1 opinion
- Murphy's adm'rs v. Branch of the Bank of AlabamaSupreme Court of Alabama · 1843
3Cited by6 opinions
- Davidson v. State ex rel. WoodruffSupreme Court of Alabama · 1879
- Lee v. HoustonSupreme Court of Alabama · 1852
- Ratliff v. AllgoodSupreme Court of Alabama · 1882
- County Commissioners of Calhoun Co. v. Woodstock Iron Co.Supreme Court of Alabama · 1886
- Macdonald v. StateSupreme Court of Alabama · 1904
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