Trimmier v. Thomson

Citations

• 19 S.C. 247
• 1883 S.C. LEXIS 77

Syllabus

<p>1. Executors sued upon the debt of their testator plead, inter alia, piene administravit, and verdict was rendered for the plaintiff generally. Judgment and execution were entered against the executors for the amount so found, “to be levied of the goods, &c., of testator in the hands of defendants to be administered, or which may hereafter come into their hands to be administered.” After second action brought to recover this debt from the executors, individually, they made a motion to set aside the former judgment, or to make the same conform to the verdict and the facts proven, alleging by affidavit that no evidence was taken on the plea oiplene adram‘istravit, and that the case Was heard solely on the question of testator’s indebtedness. Held, that the judgment was responsive to the issues involved and to the verdict, and could not be disturbed except as to the words, “ or which may hereafter come, &c.,” which were unauthorized and mere surplusage.</p> <p>2. A judgment record, which is responsive to the issues necessarily involved, cannot be contradicted by proof of what was or was not tried.</p> <p>3. A judgment generally against executors who do not plead plene administravit, is conclusive evidence of assets then in- hand, in a second action of debt suggesting a devastavit; a fortiori, where such plea has been interposed and not found by the verdict.</p> <p>4. An action against defendants to recover a debt established by a former judgment against them as executors, and alleging a devastavit, instituted within a year after the termination of the former action, is not barred by the statute of limitations.</p>