Spigener v. Farquhar

Spigener v. Farquhar. Action against Administrators, on Written Contract of Intestate. l._ Form, of judgment against administrator, as to levy of execution; clerical misprision. — In an action against an administrator! founded on a contract made by his intestate while living, the judgment should direct the levy of the execution on “the goods and chattels,” but not on “ the lands and tenements” belonging to the estate of the deceased; yet the addition of those words will be regarded as a clerical misprision (Code, § 3916), and will be corrected at the costs of the appellant, when the record shows no other error. Appeal from the Circuit Court of Coosa. Tried before the Hon. James W. Lapsley. This action was brought by A. B. Farquhar, against J. H. Spigener and Julia A. McDonald, as administrators of the estate of Thos. S. McDonald, deceased ; and sought to recover the balance due and unpaid on a promissory note signed by McDonald & Simms, of which firm said Thos. S. McDonald was alleged to have been a partner at the time of his death. Under the rulings of the court on the trial, there was a judgment on verdict for the plaintiff, for $3,280.69; besides costs; “for which,” as the judgment recites, “ execution may issue, to be levied upon the goods and. chattels, lands and tenements, belonging to, and of said estate of said Thos. S. McDonald, deceased.” The defendants appeal from this judgment, and here assign it as error, together with the numerous rulings to which exceptions were reserved on the trial. Watts & Son, for the appellants. Jas. E. Cobb, and J. H. Parker, contra. [MAJORITY — STONE, C. J.] STONE, C. J. This suit is against administrators, on a contract, or contracts, made by their intestate. The judgment is, that plaintiffs recover, etc., to be levied of “ the goods and chattels, lands and tenements, belonging to, and of said estate of Thomas S. McDonald, deceased.” So far as the judgment condemns the lands and tenements” to be sold, it is a clerical error, and will be here amended by-striking out the words “lands and tenements ; and, as there is nothing in the other exceptions, the judgment, as amended, will be affirmed at the costs of appellant, but without damages. — Code of 1876, § 3946. Affirmed.