Crump v. Perkins

• Decision Date: 01 June 1881
• Citation: 18 Fla. 353
• Parties: CRUMP, ADMINISTRATOR, APPELLANT, v. PERKINS, ADMINISTRATOR, APPELLEE
• Court: Florida Supreme Court

18 Fla. 353

CRUMP, ADMINISTRATOR, APPELLANT, v. PERKINS, ADMINISTRATOR, APPELLEE

Supreme Court of Florida

June 1, 1881

[Syllabus Material] [Syllabus Material] [Syllabus Material]

Rehearing Denied 18 Fla. 353 at 368.

Original Opinion of June Term, A. D. 1881, Reported at: 18 Fla. 353.

Appeal from the Circuit Court for Madison county, to which court the case was transferred from Leon county.

This was a bill filed on the 27th January, 1870, in the Circuit Court for Leon county by appellant against William Perkins, and upon his death revived against his administrator, John H. Perkins. Complainant alleges that at the time of Simpson's death a mercantile copartnership existed between himself and Simpson; that said Perkins upon the death of Simpson retained the assets of the firm as surviving partner. Plaintiff prays an account of the partnership matters and a decree for what may be found due him. Defendant answered, admitting the partnership, avering inter alia that the effects of the copartnership consisted of notes and accounts, a number of which were worthless; that the firm was indebted to a considerable extent; that he has proceeded to collect the debts as speedily as he could, and applied the moneys to the payment of the debts, and submits to an accounting. He alleges further that he was unable to read and write, and that Simpson kept the books, and had during his lifetime the entire management of the business. A statement of account prepared by an accountant of their mutual selection is filed as an exhibit. Defendant avers that there are erroneous entries in the books, and claims that those errors were admitted by Crump, the plaintiff.

Upon bill and answer there was a reference to a master and master's report, but there is no account stated by the master which could be made the basis of a decree. This report contains references to many matters connected with the accounts, but the determination of the questions involved in this appeal does not involve their consideration. To this report there were exceptions by the defendant, and it was not acceptable to either party. Upon an ex parte application, and after leave granted, the complainant, on the second of July, A. D. 1875, filed a supplemental bill. After setting forth the proceedings already had in the case the plaintiff alleges that both parties being dissatisfied with the report of the master agreed to disregard it and make an amicable settlement between themselves, and that in the presence of their respective counsel they executed an agreement which provided that the bill should be dismissed and the settlement made should be final of all demands between the parties arising out of the bill; that there was a classification of the assets made, but no actual decision had; that this agreement provided that the notes and accounts should be divided between the parties as early as practicable, but from various causes it did not become practicable to make said division until July 31, 1872, and that consequently the bill was not dismissed; that on the 31st July, 1872, complainant and the said Perkins, with James Conner and Daniel Switzer, principal debtors of said firm, met at the office of complainant's counsel, and at the request of said parties a statement was drawn up by Bolling Baker, showing the solvent assets of said firm, including the amounts due by each party to the firm. A copy of the statement is made an exhibit to the supplemental bill. Complainant alleges further that a division was made of the notes which the parties considered solvent and an equal portion assigned to each, the largest notes being those of Switzer and Conner, who executed new notes for the balances due by them, which notes were left with complainant's counsel to abide the final settlement between the parties; that this statement shows that Perkins was in debt to the firm $ 1,477.36, to one-half of which sum Crump, as administrator of Simpson, is entitled; that upon application subsequently made by plaintiff to Perkins for the payment of this sum he, Perkins, declined to pay anything, alleging that the statement was erroneous. Plaintiff prayed for a decree for the sum of $ 738.68, less $ 50, or that another reference be had and account stated by a master.

To this bill, on the 4th of October, 1875, the defendant interposed a demurrer and plea. The grounds of the demurrer were, because it appeared by the bill and exhibits that there had been a full settlement and adjustment of the matters referred to and because there was no equity in the bill. The plea is defective, in that it does not set out any matter of fact independent of the demurrer, but pleads the "above named settlement and adjustment," meaning the settlement set out in the bill. No attention seems to have been given it. The demurrer was overruled on the 28th of June, A. D. 1876. After various proceedings looking to a revival of the suit which it is unnecessary to mention, and on the 3d of February, A. D. 1880, what the defendant called a plea and answer and demurrer was filed by defendant. "For plea and demurrer" to the bill, "or unto so much and such parts thereof as this defendant is advised, is or are material or necessary for him to plead or make answer unto, this defendant saith." That he admits the facts as to filing of the original bill and the proceedings set forth up to and including the settlement had in the year 1871, and pleads said compromise and settlement as a bar to the account prayed for by the plaintiff, avering willingness upon his part to abide by and perform all the terms of said settlement so far as they are obligatory upon him. Through the answers filed the defendant denies that the statement marked exhibit "B" was drawn up and exhibited as stated by plaintiff, or that any sum as stated in the bill was due by Perkins to Crump, giving in detail the facts connected with the matter, and affirming that exhibit "A" is the true and final settlement between the parties. To this answer there was a replication filed. So far as this paper purported to be a demurrer no attention seems to have been given to it. There was no particular replication to the plea.

After testimony taken covering both the subject-matter of the answer as well as the plea, on the 9th of December, A. D., 1880, the defendant's counsel was served by plaintiff's attorneys with a notice that on the 20th of December they would make application to the Judge to proceed at once to a hearing of argument of the plea filed by the defendant, stating that said plea had been set down for a hearing on the first of March, 1880, as well as that on the next day, or as soon thereafter as counsel could be heard, they would ask the Judge to proceed to a final hearing and determination of said cause, "the same being set down for hearing by plaintiff and now ready for final determination."

The transcript of the record then recites that on the 17th of January, A. D. 1881, "in pursuance of the above notice this cause came on to be heard, * * * and after judgment of counsel judgment was rendered in words and figures as follows." After stating the title of the case the decree continues: "This cause came on to be further heard, and was argued by counsel, and thereupon, upon consideration thereof, it was ordered, adjudged and decreed as follows, to-wit: That upon the law and the merits of the case the plea of defendant, John H. Perkins, as the administrator, &c., of the estate of William Perkins, deceased, be sustained, and that the supplemental bill of John R. Crump, who sues as the administrator of Lewis T. Simpson, deceased, complainant, be dismissed with costs."

It is from this decree that this appeal is taken.

Decree affirmed.

D. S. Walker, Jr., for Appellant.

R. B. Hilton, for Appellee.

OPINION

MR. JUSTICE WESTCOTT.

The respondent in this case seeks, independent of its merits, to maintain the final decree dismissing the bill upon its merits on account of matters in connection with the supplemental bill. It is objected that it was filed ex parte and without notice. After general demurrer, plea and answer in support thereof, and hearing upon the merits and final decree, the want of notice if necessary in such case is waived. It is also urged that by this bill new matters occurring since the filing of the original bill constituting a new case are sought to be brought forward by way of supplement; that the case made by the bill, if any case is made, is the subject-matter of an original suit in equity. If any such objection as this was made at any time in the Circuit Court the record does not disclose it. The first pleading in response to this supplemental bill is a general demurrer for want of equity. This being overruled, there was a plea and answer in support thereof and after testimony a final hearing.

This objection, even if it be a good one, must, under these circumstances, be regarded as waived. There was here a general demurrer for want of equity. No such ground as that the matter of the supplemental bill is the subject of original rather than supplemental proceedings was set up in the demurrer. In the case of Pinch vs. Anthony, et al., 10 Allen 477, it appeared "that at the time of filing the original bill the plaintiff had no cause of action. The plaintiff afterwards filed a supplemental bill setting forth certain facts that had occurred during the pendency of the suit." It was objected that the facts set forth in the supplemental bill could not be considered in that suit, but that the bill should be dismissed and the plaintiff be left to bring a new suit, if he has good cause of action. Say the court: "We have found no authority that goes so far as to authorize a party who has no cause of action at the time of filing his original bill to file a...