State ex rel. Clark, West & Co. v. Bowen

Citations

• 45 Miss. 347

Syllabus

<p>1. Pleading ^ warn a dbkueeek to a plea carried back to the declaration.—Under art. 108, page 498, Revised Code, 1857, if the declaration is so defective that judgment cannot according to law he given for the plaintiff, then a demurrer to a plea can be carried hack to the declaration. The defect must not he in form and technicality, hut radical, going to the right of recovery.</p> <p>2. Same—how to plead the judgment op a court op special jurisdiction. — Art. 82, page 491, Revised Code, 1857, materially modifies and relaxes the common-law rule of pleading a judgment or decree of a court of special jurisdiction, by dispensing with “ a statement of the facts conferring jurisdiction.” It is enough to allege “that such judgment or determination was duly given or made.”</p> <p>3. Probate court—effect and sanction op “the allowance op a olaim against a decedent’s estate.” —The allowance of a olaim against the estate of a decedent on ex parte evidence by the probate court, serves no other purpose hut to protect the estate, and indemnify the administrator, it does not import the verity, sanction or conclusiveness of a judgment.</p> <p>4. Same—eppect and sanction of the confirmation of the report op commissioner, in insolvent proceedings, and direction to the administrator to pay their pro mata shares to creditors. — In insolvent proceedings, the confirmation of the report of the commissioner to take proof and audit the claims of creditors, becomes a judgment conclusive; and the direction to the administrator to pay a sum certain or a pro rata amount to the creditors is a final judgment, personally binding on the administrator,, and on Which the creditors may have execution against him personally. It is also conclusive that the administrator had in hand assets of the decedent, equal to the amount ordered to be disbursed.</p> <p>5. Pleading—what pacts presumed, in pleading a judgment op the probate court, in a suit on an administrator’s bond. — If in any state of facts the