Biddle ex rel. Jenkins v. Cooper's Administrator

Majority

p. 138

JACOB BIDDLE, for the use of JABEZ JENKINS vs. RICHARD J. COOPER’S Administrator.

Headnote

Appearance and pleading to a scire facias is a controverting the suit, so as to deprive an administrator of the benefit of sec. 14, Dig. 227, in relation to costs.

Scire facias on a judgment. The defendant appeared by attorney,, and filed pleas to the action.

p. 139

Ridgely

now confessed judgment, but insisted that the defendant was not liable for costs, on the ground that no probate had been made before suit brought, as required by law, {Digest, 227,) of which fact the defendant made affidavit; and that the defendant had not controverted the claim.

Bates, for plaintiff.

■C. G. Ridgely, for defendant.

The defendant has pleaded to the scire facias, and this is controuerting the suit; for the plaintiff was bound to come prepared for trial, !and~it would not be just that he should pay the costs of witnesses, an expense which was made necessary by filing the pleas. If the defendant did not intend to controvert the demand, he should have permitted judgment to go against him without appearance or plea.

Judgment for plaintiff.