Clonts v. Cline

• Decision Date: 09 December 1930
• Citation: 100 Fla. 1449,131 So. 321
• Parties: CLONTS et al. v. CLINE et al.
• Court: Florida Supreme Court

131 So. 321

100 Fla. 1449

CLONTS et al. v. CLINE et al.

Florida Supreme Court

December 9, 1930

Commissioners' Decision.

Error to Circuit Court, Polk County; Harry G. Taylor, Judge.

Action by Hattie Powell Clonts and another, executors of the will and estate of S. L. A. Clonts, deceased, against R. L. Cline and others. Judgment was entered upon nonsuit, and plaintiffs bring error.

Affirmed.

COUNSEL Knight & Laird, of Lakeland, for plaintiffs in error.

Callaway & Burruss, of Lakeland, for defendants in error.

OPINION

ANDREWS C.

Plaintiffs in error, 'executors of the will and estate of S. L. A Clonts,' as plaintiffs below, on March 16, 1928, brought action in the circuit court of Polk county, against defendants in error on a promissory note executed June 12, 1925, by defendants jointly in favor of S L. A. Clonts.

It does not appear that a demurrer was filed to the declaration, but that defendants in due course filed their plea and in substance alleged that before the institution of said action plaintiffs agreed unconditionally by parol agreement to accept in settlement of said note sued upon, and other notes a reconveyance of two certain lots covered by a mortgage given as security for the payment of the said notes, and that, after defendants had complied with said agreement, plaintiffs changed their minds and refused to carry out the same.

A demurrer filed by plaintiffs to said plea was overruled, and the cause went to trial upon a joinder of issue on the pleas. At the conclusion of the taking of testimony, a motion for a directed verdict in favor of defendants was allowed, whereupon plaintiffs moved for an order of nonsuit which was granted. The facts, points, and decisions therein were reserved by bill of exceptions for final decision upon writ of error, which was later taken to a final judgment upon the nonsuit.

The declaration alleges that 'Hattie Powell Clonts and Forrest William Clonts, executors of the will and estate of S. L. A. Clonts, deceased, * * * sues the defendants,' etc.

In the case of Branch v. Branch, 6 Fla. 314, it was held that:

'In a suit by an Executor or Administrator, in his representative character, he must describe himself and make his claim as Administrator or Executor only; describing himself Executor or Administrator is mere descriptio personae.' See, also, Adams v. Higgins, 23 Fla. 13, 1 So. 321; Thomas v. Martin (Fla.) 129 So. 602; State v. Gray, 92 Fla. 1123, 111 So. 242.

To sue in a representative capacity executors or administrators must describe themselves and make their claims...