Englehart v. Richter
Supreme Court of Alabama
Appeal from the Circuit Court- of Cullman. Tried before the Hon. Osceola Kyle. This was an action by appellee against appellants on a promissory note for $250 payable to Anna King. In the summons and the caption of the complaint the plaintiff is described as “William llichter, executor of the last will and testament of Anna King, deceased.”
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Appeal from the Circuit Court- of Cullman. Tried before the Hon. Osceola Kyle. This was an action by appellee against appellants on a promissory note for $250 payable to Anna King. In the summons and the caption of the complaint the plaintiff is described as “William llichter, executor of the last will and testament of Anna King, deceased.” In.the body of the complaint is this clause: “The plaintiff, who sues as the executor of the last will and testament of Anna King, deceased, claims,” etc., etc. The defendant, William Englehart pleaded payment and the general issue. His co-defendant, Mary…
1Opinion of the CourtTyson, J.
We know of no rule of practice that required the court to try the issue presented by the pleas of the defendant, Mary Englehart, separately and to accord to her the preference of having her pleas tried first; in other words, to grant to her a severance in the trial of *567the cause. Hers were pleas in bar as were the pleas of her co-defendant.
It is doubtless true that the burden of showing incompetency of a witness is upon the objecting party. But where, as here, the suit is by an executor upon a note executed by the defendants to his testatrix, we apprehend that the burden of showing…
2Cases cited4 opinions
- Lucas v. PittmanSupreme Court of Alabama · 1891
- Miller v. Cannon & Co.Supreme Court of Alabama · 1887
- Frank v. ThompsonSupreme Court of Alabama · 1894
- Payne v. LongSupreme Court of Alabama · 1901
3Cited by6 opinions
- Warten v. BlackSupreme Court of Alabama · 1915
- German v. Brown & LeeperSupreme Court of Alabama · 1905
- Qualls v. Monroe County BankSupreme Court of Alabama · 1934
- Isbell v. PerrySupreme Court of Alabama · 1955
- Procaccianti v. ProcacciantiSupreme Court of Rhode Island · 1949
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