OF l'HE STATE OF ARKANSAS. LITTLE ROCK. JulY.1838. JARRETT, ADE'R OF ACHESON, against WILSON, ADN'It OF WILSON. JARRETT ve. WILSON. ERROR to Lawrence Circuit Court. If the defendant pleads, after deniurrer to the declaration overruled, he can take no advantage in this bourt of insufficiency of the declaration. He should let judgment go upon the demurrer, and appeal. Upon iSsue on replication that there are good's unadmiriistered, to the plea of plene administravii, the verdict ought to find the amount of assets unadmin-istered, and if it do not, the judgment is bad. Anct if in,auch case the judgment be that " the plaintiff recover of the defend, " ant his debt and damages, &c., to be levied of the goads, &c. of his intes, " tate, if any he hath unadministered, and if none, of his own proper goods, " &c. " it is equally bad, whether one part .of the judgment might be re- versed and the other affirnied, or not. If one part could be affirmed and the'other reversed; still the situation of tie plaintiff in error would not be bettered. His own property would still be liable, if he has no assets unadministered. The statute of the State curing informality, &c., does not extend to a case like the present. this was an action of debt, commenced in the Lawrence Circuit Court; by Marcus Wilson against Jarrett, administrator of John Ache-nAeceased, upon a writing obligatory; executed by AchesOn in his "lifetime, whereby he aeknowledged that Wilson had advanced and :bicome liable for hica, Acheson, to the amount of $6676 70.. At May =term, 1835, of the Court below, the defendant , below craved oyer of the writing obligatory, and demurred to the declaration, which de-murrer was Overruled, and the defendant below then filed his plea of plene administiavit, except as_ to the sum Of $240 92, to which plea the plaintiff below demnrred, and his demnrrer being overruled, he filed his replication, that the defendant had in his hands at the commencement of the suit, goods and chattels of his intestate unadminis-tered, to the amount of the debt—concluding to the country, to which the defendant below joined issue, and thereupon the following judg-. . ment was rendered—that the defendant having failed to produce eVidence to sustain his plea, and saying nothing further in bar or preclusion; & c., and there being sufficient evidence of the plaintiff's demand, it is therefore considered by the Court that the said plaintiff have and recover of the said ' defendant the sum of $6676 70, debt, ami $1068 23, damages, and costs of suit, te• be levied of the goods and chattels which were of the said John Acheson at the time of his death, in the bands of the said administrator, defendant as aforesaid, remaining to be administered upon; if so much thereof in his hands:to be ad-
.138 CASES IN THE SUPREME COURT LITTLE • ROOK, ministered he bath not, then to be levied on the prpper goods and Ju lyo ass chattels of said defendant JARRETT The errors assigned 'were, 1st, That the declaration was uncertain txhab N. and inSufficient: 2d, The overruling of the demurrer: 3d, That the Court rendered judgment without impannelling a jury, or having the case submitted to . the Court: and 4th, The form of the judgment as against . the proper goods and 'chattels of the administralor. RINGO,. Chief Justice, and DIcRnsfsoN, Judge, having been engaged in the case, Aid not sit therein, and it came on to be tried before LACY, Judge, CAUSIN and HAGGARD, Special Judges, in the name of Jarrett, adm'r., against .Ilexander Wilson, Offer.' of Marcus Wilson, the oiginal plaintiff below. HALL, for the plaintiff in error, contended That the . demurrer to the declaration was wrongly, overruled, and that there was error in the judgment below. TRAPNALL.and ' COCKE, contra: Various , objections are taken .to the dee/aration, the sufficiency of which . cannot certainly at this stage of the cause be put in question. But the objections themselves are without form or-propriety. See Statute ofJeefail, flicCampbell's Digest, 332. Demurrer overruled or withdrawn pdecludes the defendant from going back to the judgment. • The plaintiff contends there is no order ou tbe.record, referring the deCision of the case to the Court. The Court could not-have decided opon the case without the consent of the Parties, and after judgment the legal preSumption is conClusive that it was by virtue of that consent that the Court acted. .Every thing will be . presumed in favor of the judgMent below, which is not contradicted by the record, is a principle too wdl settled and tao frequently referred to before the COurt to heed a reference now. The judgment against the administrator de bonis intestati, is un-doubledlyzood. The residue of the judgment may be erroneous. If it is, as , the.tWo judgments are separate and not dependant on each other, so . much of the judgment-of the Court below as is de bonis pro-priis may be reversed, and-the judgment de bonis intestati be affirmed. Tidd's PraCtice, 1128 i. 1129; 4 Burrows, 2018; 2 Bacon 228—'29, A . judgment for debt and damages may be reversed as to the damages and affirmed as to the debt. Tidd, 1128-9. CAUSIN, Special Judge, delivered the oPinion of the Court: This
OF THE STATE OF ARKANSAS. 139 cause comes before the Court upon a writ of error, Sued out by the, LITTLE ,ROCK. plaintiff in error, against the intestate of defendant in error, to the July, 1838. Lawrence 'Circuit Court. JARRETT The intestate of the defendant in error brought an action of debt in WIrSON. the Court below against the plaintiff in error in an instrument of writing, signed and sealed by John Acheson, the plaintiff's intestate, by which the intestate acknowledges his indebtedness to the defendant's intestate in the sum of three thousand and seventy-seven dollars, and the liability of the defendant's intestate for him to pay eertain debts to sundry persons, amounting to . the sum of three thousand two hundred and ninety-nine dollars and seventy cents, the two sums making the aggregate amount of six thousand six hundred and seventy-six dollars and seventy cents. To the declaration filed the defendant in the Court below demurred, but the Court overruled the demurrer; he then pleaded that the action was prematurely brought, but withdrew this plea pleadedplene administravit, praeter two hundred and forty-two dollars and ninety-two cents, to which plea the plaintiff in the Court below demurred: the Court however overruled the demurrer, and he then filed his replication, in which he alleges that the plaintiff in error at the commencement of this suit, and ever since, had divers goods and chattels which were of his intestate at the time of his death, in his hands as administrator, to be administered, of great value, to wit: of the value of the debt set forth in the declaration, and wherewith as administrator he could and ought to have satisfied the debt in the declaration mentioned; on this replication issue was joined. Under this state of pleading, the Court below (for it appears that no verdict was rendered by a jury) entered up judgment de bonis intestati et si non de bonis propriis against the plaintiff for the debt, and one thousand and sixty-eight dollars and twenty-three cents damages and costs. The errors assigned may be resolved into two: First, that the declaration is insufficient: Second, that the judgment given in the Court below is erroneous andillegal. The first objection the Court considers untenable; admitting the insufficiency of the declaration, there being a cause of action apparent on the face of it, no such objection can be successfully urged before this tribunal. The proper time for making the objection has passed. The plaintiff; if he relied on the insufficiency of the declaration, should have appealed from the judgment of the Court, on the demurrer to the same. On this point, the authorities are too conclusive to admit of a
CASES THE, ' A:44 COURT ',untrue agnibt, Set2LMersk i Ers g SOM. q p a r 7te.,.114 4.73; '3 RV, 52,3 3d131, Rat ?Ives Agati„ IV. SW; Stal's .Plattaings„ . 2 * 1 4 1 7 t -Rai ; b 4 It hos been (conteeded- by axe counsel for the (dekaant that wrm i re ix . jeetion &nob- agdinttfir jagurvIntsbouild ua t be sustained, Imcause the Judg- ment eons -Mils (cif alE4 . met and independent pm*, and that pnation iratim H i g n a* * again gt t he . iphi t n i n *I on propesty m ai w e be l l versed, mad 'the 'remaining pant affecting him in km ' Tepiresentalime ammeter eradmiraitratorafifirtned: . but in the wiew (of the C-Outit, Serif he Judgmenr(coniSts (or &tine igna aaa,il mnaot parts ) , (so that 6oue partmaightibe . )rewersed and the (Other aramiked„(or the same is him.. pableaa'f I:reparation iis a matter pei f feay -ina co t eiial, as the siiiiskion to :.4ate in the Judgment the. amounted* assets smadrnini g tered witiates the while (cii. it. 'The plea (cif plene tachninis'trwi't . ., thane) sant glisitained, anita y eressailly afalse Plea mithin the age of Jibe pa:Sty pleading and.if it be fraud /1 , ;gaity lt lit e,theverdiet(oughtitii find amotint (of assets turadminit tered; and be is liable km that Searws. Berea, Mt Manton, SM. Suplaose . one Fait (of the judgment were illemersed and thZ(Other aff- -firma, would it better the ?situation (or ttbe plaintiff in error?? Wet in the Iteasit„, for (ewen then Ithe plaintin own propeity ((upon Abe &tithe be has= assets to he adn ' iniidered,l) would be (exposed Utile payment orthedebt. Whether . ere plaintiff Haas assets inuaidnister= ondionant, it is impilacticable Tor this Goad to determine. Ilrem the urecord man teensidt the has ame cent; if the (consequenoe muggested 'nada meat from (carrying into (effect either part salthe Juitginent, ((and that it would sseems too (dear Ito be (denied)), tremersa11(oTit is :absolute- Iff)reviired. Ile ant tor the L -egislature in 'regard to inlormaTity in peaffing., wined (upon in alignment by the defendant% (counsel, the (Quit calliannttcninfidel . amplicableto the (case presented lby the mecca& 'Mime jultb a mn7rif is thane:fine weversed, the <case uzemanded for netr 10.11 • 10 (co■Its in da m (Gond - awarded Ito theplainttiff in (error. - Meson/a tiamtsun,mie . (of the (5ndges in this (cause, dissents enta Ithe nstfTheCloud herein dehwered (at this itime,:so far as theffinit asEignmentiff cerannis derlited Ilpon. It is indt (domed rnenessany'cor ;lop:14mA ito dedide (on :said asfignment, because :such dediiion wMuld . mci t waly lUbe t ree ntwinfhe (Case. Amilitrasmudh as Ihnre was ino tdrawal writhe demurrer Ito the declardion prior to the Plea to tie im elite ', bang terposeff; the szeasons ;von wiliidh that waft of theszlliinio ' n (of the Vault is predicated ) , lave ino force here. 'Theredime a Inon-ionn-
ea r MO STEM 67 roarreore con pidt thinaciiiiiiral berefEttalfeel, an8 sxia ' wawa to ibe cetera ftlxvopinion (damned in ens case.. nom . .. 1112311. G.iN,CAM:N„ mamma. KAMAN EAGG/ARD, unzos. THOS. J. LALY. 11.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.