Barnes v. Scott

• Decision Date: 02 May 1892
• Citation: 11 So. 48,29 Fla. 285
• Parties: BARNES v. SCOTT, Sheriff.
• Court: Florida Supreme Court

11 So. 48

29 Fla. 285

BARNES v. SCOTT, Sheriff.

Florida Supreme Court

May 2, 1892

Error to circuit court, Jackson county; JAMES F. McCLELLAN, Judge.

Assumpsit by Alice G. King against William D. Barnes and Rhoda E. King as executors of Cullen Curl, deceased, to recover on certain notes executed by deceased. There was judgment for plaintiff and defendants bring error. Subsequently, plaintiff died, and Andrew Scott, as sheriff of Jackson county, having qualified ex officio as administrator of plaintiff, was substituted as party plaintiff. Judgment reversed, and new trial ordered.

Syllabus by the Court

SYLLABUS

1. The two pleas, 'want of consideration,' and 'that the note sued on was not the note of the alleged maker thereof,' furnish distinct and independent defenses, and are not so inconsistent as to preclude their being interposed together in the same suit.

2. To erroneous rulings that appear upon the face of the record and that are, per force of their very nature, a part of the record itself, and that appear from a simple transcript of the papers and proceedings that compose the rocord proper in the cause, without the help or addition of a bill of exceptions, it is not necessary to note exceptions or objections in the court below in order to assign them for error to be reviewed upon appeal. The ruling of the court requiring the defendant to elect between two pleas interposed by him, followed by the election required by such ruling, held to be such a ruling as was apparent on the face of the record, and that required no exception to have it reviewed here.

3. No exception or objection is necessary to be taken or noted to the rulings of the court below upon demurrers to the defferent pleadings in order to render them reviewable as error here.

4. The presentation of a claim for payment to the personal representative of a deceased debtor, when not denied or contested by such representative as being a good and valid claim against the estate, stops the operation of the general statute of limitation and of nonclaim, when made within the period of 12 months after the qualification of such personal representative. Such presentation has the same legal effect, so far as the bar of the general statute of limitations is concerned, as though suit had been instituted within that period. Whether such presentation, if made within two years, would not have the same effect, not decided.

5. Where there is more than one qualified legal representative of a deceased debtor, the presentation of a claim for payment to one of them is tantamount to a presentation to all.

6. Where a defendant is designated simply as 'executor' in a suit, and the plaintiff, by leave of the court, at the trial of the cause, amends hisproecipe, summons, and declaration so as to describe the defendant as 'surviving' executor, held, that such amendment is as to matter of form only, and does not entitle the defendant to a continuance of the cause, under the provisions of section 96, p. 834, McClel. Dig.

7. The effect of sections 68-70, p. 96, McClel. Dig., is to excerpt the question of the possession or nonpossession of assets by an executor or administrator, as an issue, out of suits brought by creditors against the estate simply to reduce their claims to judgment; that issue, and the consequent personal liability or nonliability of the executor or administrator and his sureties, being postponed by this legislation to another suit on the judgment recovered, in which the issue of assets or no assets is directly and chiefly made. Except in suits brought directly to test the existence of assets, and the consequent liability of the executor or administrator and his sureties, the office and effect of the pleas plene administravit and plene administravit praeter have by this legislation become nugatory in this state, and no longer a legitimate defense in suits brought simply to reduce creditors' claims to judgment.

COUNSEL Liddon & Carter, for plaintiff in error.

John W. Malone, for defendant in error.

OPINION

TAYLOR J.

When this cause was first brought to this court upon writ of error, William D. Barnes and Rhoda E. King, as surviving executors of Cullen Curl, deceased, were the plaintiffs in error, and Alice G. King was the defendant in error. Since that time, it has been made to appear that both Rhoda E. King and Alice G. King have died, and that Andrew Scott, sheriff of Jackson county, has qualified ex officio as administrator of said Alice G. King, deceased; and by consent of all parties the said Scott, as administrator, takes the place of said Alice G. King as a party to the suit here, the cause to proceed as though he were the original defendant in error, and the said William D. Barnes, as surviving executor, the sole plaintiff in error. On the 13th of March, 1885, the original defendant in error instituted her action in assumpsit in the circuit court of Jackson county, against William D. Barnes and Rhoda E. King, as executors of the last will of Cullen Curl, deceased, upon a promissory note for $5,000 made by Cullen Curl, dated February 11, 1880, payable one day after date.

To the declaration the defendants, as executors, pleaded (1) that it was not the testator's note; (2) want of consideration; (3) bar of the statute of limitations of five years; (4) that defendants' testator died on or about the 21st of February, 1880, and plaintiff did not sue until after five years after the right of action accrued, and more than one year after the qualification of defendants as executors; (5) plene administrative praeter. On the motion of the plaintiff the court below required the defendants to elect between their first and second pleas above, and this ruling is assigned as the first error.

It is contended for the defendant in error that this ruling cannot be assigned for error here, and cannot be considered by this court, because no exception or objection was taken or noted to same in the court below. While the rule is well settled that exceptions must be taken and noted to all rulings of the court below that it is desired to have reviewed here, when such rulings are made during the progress of a trial concerning matters in pais, that are not and can never be a part of the record in the case, unless made so by bill of exceptions duly made up and authenticated by the signature and seal of the judge presiding, yet this rule, upon a writ of error, does not apply to rulings that are apparent upon the face of the record, and that are, per force of their very nature, a part of the record itself, and that appear from a simple transcript of the papers and proceedings that compose the record proper of the cause, without the held or addition of a bill of exceptions,--such, for instance, as the rulings of the court upon demurrers to the different pleadings. When the matter submitted to the court for its decision, and the ruling thereon, is made to appear as a part of the legitimate record proceedings in the cause, leading up as steps to the formation of the issues therein, then as to such matters there is no necessity for any exception in order to have it reviewed here, because in such cases a bare transcript of the papers filed in the cause, and that compose within themselves that which is the record of such cause, and the rulings of the court thereon, would upon their face exhibit the matter to be reviewed here without the aid of a bill of exceptions to make it appear. The distinction as to when it is and when it is not necessary to take or note exceptions to rulings upon which a review is desired is thus very clearly put in Pow. App. Proc. p. 215:

'The only object of a bill of exceptions is to bring into the record the facts and the decision of the court, where it would not other wise appear therein. Sometimes, when a matter transpires or a decision is casually made, and its objectionable character not readily perceived, the party is required to make his objection at the time in order to enable the matter to be corrected, if it is chosen to be, for otherwise it may be presumed that the matter was assented to or waived. But where a question is directly raised to the court to respond to it, as upon a demurrer, or a motion formed upon the matters in the record, which shows the matter and the decision of the court thereon, no bill of exceptions is necessary. And no objection is required to be made to the decision of the court upon any matter directly submitted to the court for its decision, and that specially called for such decision; for then it is not to be presumed that the decision was casually made, or that it might be corrected upon the objection being made. For where the facts already appear in the record, and the court by a demurrer, or a proper motion founded thereon, is called upon for the proper decision or instruction, the court is bound to decide the question according to law, without any exception or objection being made to such decision; for in such a case there is palpable error apparent on the record, in case the question is decided wrong. In such a case, to state on the record that the decision of the court was excepted or objected to is unnecessary, and it is impertinent, because it is as unnecessary as it is offensive.'

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