Merritt v. Vincent Mercantile Co.

DENSON, J.

— This is an action against an administratrix commenced before a justice of the peace. A judgment was rendered against the defendant (appellant) in the justice court by default. The defendant carried the Cause by certiorari to the circuit court. At the first term of the circuit court pleas of the statute of nonclaim ivere filed, hut at the trial were stricken on motion of the plaintiff, on the ground that no such pleas were filed in the justice court.

The ruling of the court striking the pleas was duly excepted to, and is uoav properly presented for review by the bill of exceptions. The statute (Code 1907, §§ 25S9, 2590) ex vi termini makes the defense of nonclaim a defense in bar of the maintenance of the suit. Therefore the failure to file the pleas in the justice court did not deprive the defendant of the right to file them in the circuit court. It folloAvs that reversible error Avas committed in striking the pleas.

Beversert and remanded.

Tyson, (1 J., and Simpson and Anderson, JJ., concur.