Anderson v. Agnew

Decision Date29 July 1896
Citation38 Fla. 30,20 So. 766
PartiesANDERSON v. AGNEW et al.
CourtFlorida Supreme Court

Error to circuit court, Levy county; J. J. Finley, Judge.

Trover by E. W. Agnew & Co. against A. E. Hodges. On defendant's death, William H. Anderson, administrator, was substituted. There was a judgment for plaintiffs, and defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. Where the entry of an appearance by the defendant is relied upon in this court as curing defects in the service of process, such entry of appearance is a matter that should appear affirmatively and distinctly from the record. A mere recitation by the clerk in a transcript of a record upon a writ of error made before the adoption of special rule No. 3 of circuit courts (Sept. 16, 1895), 18 South. xii., that a defendant entered an appearance by some unnamed attorney, is not sufficient to show that defendant actually appeared in the case.

2. A suggestion of the death of the defendant, stating the name of his duly-qualified executor, and praying that such executor be made a party defendant in the case, in accordance with the rule of court and statute governing such proceedings, when duly filed within the time limited by law for the presentation of claims, is equivalent to, and dispenses with the actual presentation of the claim upon which the suit is brought.

3. In an action of trover, the plea of not guilty raises no issue as to the plaintiff's property in the goods alleged to have been taken and converted by the defendant. Such plea only operates as a denial that the defendant committed the wrong alleged, i. e. that he took and converted the goods to his own use.

4. Under a plea of not guilty, the general issue in trover, the defendant cannot prove the property or right of possession of the chattels in question to be in some other person than the plaintiff.

5. The purpose, in an action of trover, of proving a demand and refusal, is to show a conversion of the property; and it is wholly unnecessary to prove a demand where the conversion is otherwise shown.

COUNSEL

Thos. F. King, for plaintiff in error.

Geo. H Badger, for defendants in error.

The defendants in error, who were plaintiffs below on May 18, 1881, brought their action in trover against A. E Hodges, in his lifetime. The declaration alleged the conversion to his own use by said Hodges of 499 sticks of cedar timber belonging to the plaintiffs. To this declaration the defendant Hodges pleaded not guilty. Some other pleas were filed by the original defendant, but, there being no contention that they are sustained by the evidence in the case, there is no need of further mention of them. No further action seems to have been taken in the case until October 27, 1886, when the plaintiffs filed in the clerk's office a written suggestion of the death of the defendant, and, in such suggestion, stated that Charles B. Rogers was duly qualified as an executor of the deceased, and prayed that he be made a party defendant in the case. On the 20th of said month a notice had been issued in the case, directed to Charles B. Rogers, as executor of the defendant, requiring him to appear on the first Monday in November then next, and to show cause why he should not be made a party defendant in said cause, and that, in default of such appearance, judgment would be rendered against him by default. A copy of this notice, as well as a copy of the original summons in the case, and also of the written suggestion above referred to, were served upon said Rogers, as such executor, on October 21, 1886, in Duval county, Fla., by the sheriff of such last-named county. The record contains a recitation by the clerk that the defendant, by his attorney (without naming him), entered his appearance in the case on the 1st day of November, 1886. No further proceedings were then had until April 26, 1888, when the plaintiffs filed in the clerk's office a certified copy of the order of the county judge of Levy county, Fla., showing that the said C. B. Rogers, executor of the last will and testament of A. E. Hodges, deceased, had been 'relieved from further duties as such executor,' and that the defendant William H. Anderson had been appointed, on April 7, 1888, 'administrator de bonis non, cum testamento annexo, of the last will and testament of said A. E. Hodges, deceased.' At the same time of filing said certified copy of said order, the plaintiffs filed their written suggestion of the removal of Rogers as executor, and of the appointment and qualification of the defendant Anderson as administrator cum testamento annexo, and prayed that said Anderson, as administrator, be made a party defendant, and that summons ad respondendum be issued to him. Notice and summons were issued and served, and an order was made by the court, May 7, 1888, making said Anderson, as such administrator, a party to the suit. The defendant Anderson, as administrator de bonis non, etc., on June 3, 1888, filed a plea, in substance, that on the 9th day of January, 1886, Charles B. Rogers was the duly-qualified and acting executor of the estate of the said Andrew E. Hodges, deceased, under the will of the said Hodges, and that on that day the said Rogers, as said executor, by an advertisement published once a week for eight consecutive weeks in the Florida State Journal, a newspaper printed in the county of Levy, and state of Florida,--the first publication of said advertisement being on the said 9th day of January, 1886,--gave notice to all persons having claims or demands of any kind against the said Andrew E. Hodges, deceased, to present the same within the time prescribed by law, or that said notice would be pleaded in bar of their recovery, and that the claim or demand sued for in plaintiffs' declaration was not presented or exhibited to the said Charles B. Rogers, as said executor, or to any other representative of said estate, within two years after said publication.

Issue having been joined upon the pleas, the case was on November 29, 1889, by consent, referred to John G. Reardon, Esq., a practicing attorney of the court, as referee therein, for trial. On June 9, 1890, the referee filed an order, dated June 7, 1890, reciting that the case 'coming before me, as referee, upon the defendant's plea of the statute of nonclaim, filed therein, and argument having been submitted by both parties hereto, and having duly considered the same, it is ordered and adjudged that the said plea be, and the same is hereby, overruled and not allowed.' On June 24, 1890, the case came on for trial before the referee, who found for the plaintiffs, and assessed damages at $1,362.27, and $1,216.11 interest; total, $2,578.38, besides costs. A motion for new trial being denied, the defendant takes writ of error.

The errors assigned and argued are the overruling the plea of the statute of nonclaim, and in rendering judgment for the plaintiffs upon the evidence in the case.

Other facts are stated in the opinion of the court.

OPINION

LIDDON, J. (after stating the facts).

In the argument upon the assignment of error predicated upon the overruling of the plea of the statute of nonclaim, no question is raised as to the manner in which the ruling was made. Without reference to the procedure, the plaintiff in error contends that, upon the record and the evidence in the case, the judgment upon this plea should have been for the defendant. We consider the case as presented. Although the plea in question was overruled before the trial was had upon the other pleas, the defendant offered, without objection his evidence to sustain such plea. Considering the proof of publication of the notice to all persons having claims against the estate of the deceased to have been duly made as alleged in the piea, the question arises whether the proceedings taken in the case against Rogers, as executor, within the time limited by the statute for the presentment of claims, was equivalent to a presentation of the demand sued upon, or dispensed with the necessity of such presentation. In considering such question, the...

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13 cases
  • Senfeld v. Bank of Nova Scotia Trust Co. (Cayman) Ltd.
    • United States
    • Florida District Court of Appeals
    • May 1, 1984
    ...a conversion has occurred, it is unnecessary to prove a demand and refusal where the conversion can be otherwise shown. Anderson v. Agnew, 38 Fla. 30, 20 So. 766 (1896). See also Watts v. Hendry, 13 Fla. 523 (1869-71); Robinson v. Hartridge, 13 Fla. 501 (1869-71); Mabie v. Tutan, 245 So.2d ......
  • Rorick v. Chancey
    • United States
    • Florida Supreme Court
    • October 26, 1938
    ... ... process has been waived, that fact ought to be clearly ... established and shown on the record. Anderson v ... Agnew, 38 Fla. 30, 20 So. 766 ... 'If ... no legal service has in fact been had, and a special ... appearance designed to raise ... ...
  • Rorick v. Stilwell
    • United States
    • Florida Supreme Court
    • April 1, 1931
    ... ... been waived, that fact ought to be clearly established and ... shown on the record. Anderson v. Agnew, 38 Fla. 30, ... 20 So. 766 ... If no ... legal service has in fact been had, and a special appearance ... designed to raise ... ...
  • Smith v. Fechheimer
    • United States
    • Florida Supreme Court
    • June 30, 1936
    ...equivalent of presentation to the executor or administrator. Fillyau v. Laverty, 3 Fla. 72; Ellison v. Allen, 8 Fla. 206; Anderson v. Agnew, 38 Fla. 30, 20 So. 766. are we here concerned with sections 119 and 120 of the Probate Act of 1933 (chapter 16103, Acts 1933) dealing with this same s......
  • Request a trial to view additional results

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