Davis v. Evans, C-177

• Decision Date: 27 June 1961
• Docket Number: No. C-177,C-177
• Citation: 132 So.2d 476
• Parties: Marion Janet DAVIS, Appellant, v. Neal D. EVANS, Jr., as Executor of the Estate of Anderson Woody Phillips, deceased, Appellee.
• Court: Florida District Court of Appeals

Page 476

132 So.2d 476

Marion Janet DAVIS, Appellant, v. Neal D. EVANS, Jr., as Executor of the Estate of Anderson Woody Phillips, deceased, Appellee.

No. C-177.

District Court of Appeal of Florida, First District.

June 27, 1961.

Rehearing Denied Sept. 14, 1961.

Ralph E. Sistrunk and William T. Kaler, Jacksonville, for appellant.

Marks, Gray, Yates, Conroy & Gibbs, Jacksonville, for appellee.

STURGIS, Judge.

This is an appeal from a summary final judgment in a negligence action entered in favor of the defendant executor of the estate of Anderson Woody Phillips, deceased. The judgment is based on the premise that the claim is barred by the non-claim statute, F.S. § 733.16, F.S.A.

Dates are important. On February 2, 1959, a negligence action was filed in the Circuit Court of Duval County by Marion Janet Davis, plaintiff, against Anderson Willie Phillips, defendant. The real name of the defendant was Anderson Woody Phillips. He was served with process under the incorrect name. He died on March 23, 1959. On March 25, 1959, his attorneys of record, using the incorrect name and without inviting attention to that error or to the fact of death, caused interrogatories to be addressed to the plaintiff. On April 6, 1959, his attorneys in like manner filed an answer in his behalf containing two defenses, one denying the negligence charged and the other alleging contributory negligence on the part of the plaintiff. In like manner plaintiff's deposition de bene esse was taken as a witness for the defendant and on May 15, 1959, notice was given of the filing of said deposition in the cause. While it is not reflected by the record, counsel of record for Phillips during his lifetime, now appearing on behalf of his executor, stated on oral argument that when the post-mortem pleadings were filed in Phillips' name they did not know that he was dead. We can and do fully accept this statement as true, without doing violence to the conclusion we reach on the merits of this appeal.

The next transaction in the suit took place on December 15, 1959, when the same firm, designating themselves as 'attorneys of record for the defendant,' filed a 'Suggestion of Death' in which for the first time defendant's proper name was stated as 'Anderson Woody Phillips' and his death reported. Plaintiff promptly moved for an order substituting the appellee, Neal D. Evans, Jr., as Executor of the Estate of Anderson Woody Phillips, deceased, in the place of the deceased and pointed out therein that the party defendant named in the suit, Anderson Willie Phillips, is one and the same person as Anderson Woody Phillips. On December 28, 1959, the firm of attorneys who appeared on behalf of 'Anderson Willie Phillips', now appearing in their own right, moved to quash the service on them of plaintiff's last-mentioned motion and notice of hearing thereon on the ground that they were not 'attorneys of record for any party in the cause.' The motion to quash service of notice on said attorneys was denied, plaintiff's motion to substitute Phillips' executor as party defendant was granted, and said defendant was allowed to file additional defenses.

On February 1, 1960, the defendant executor, by his said attorneys, filed defenses as follows: First, a motion to dismiss the complaint on the ground that it failed to state a cause of action against the executor of the estate of 'Anderson Woody Phillips.' Second, in bar of the action a defense to the effect that Anderson Woody Phillips died on March 23, 1959, that notice to creditors of his estate was first published on April 9, 1959, that the time for filing claims against the estate expired on December 9, 1959, and that plaintiff did not within the time allowed by law file with the appropriate court a proper and timely claim against said estate. Third, a denial of the negligence charged in the complaint. Fourth, that the plaintiff was guilty of negligence proximately contributing to the injury. Plaintiff moved to strike the first and second defenses on the ground that they failed to constitute a valid defense. An order denying that motion states that it is predicated on the authority of Toney v. Adair, Fla.App.1960, 120 So.2d 622, and recites, inter alia:

'* * * the Court is of the opinion that the argument of counsel for the plaintiff that the personal service upon Anderson Willie Phillips, now deceased, in his life-time, and the filing of an answer on his behalf and the taking of a deposition after his death, does not alter the language of Chapter 733.16, Florida Statutes of 1957, nor distinguish this case from the Toney case, supra, and that the hardship, or even injustice, that may be inflicted on the plaintiff, falls in the same category as that found in the opinion In re Aron's Estate, Fla.App., 118 So.2d 546; * * *'

It is unnecessary to discuss this action of the trial court as no assignment of error is predicated thereon. Research discloses, however, that the cases cited by the order as authority for denial of the motion did not involve any question of estoppel, as does this appeal.

The defendant executor then moved for summary judgment and supported the motion by his affidavit showing publication of notice to creditors and failure of plaintiff to file claim against the estate, as alleged by his second defense to the complaint. In resistance thereof plaintiff caused to be filed an affidavit by her attorney of record, the averments of which stand unchallenged, alleging, in substance, that plaintiff did not have knowledge of the original party defendant's death or of the fact that his correct name was Anderson Woody Phillips until December 14, 1959, the date on which the above-mentioned suggestion of death was filed (Note: This date is five days after the expiration of the time allowed under the non-claim statute for filing claims against the Phillips estate); that prior to that date plaintiff relied upon the pleadings filed on behalf of defendant 'Anderson Willie Phillips' in the cause; that the defendant executor had personal knowledge of the pendency of the suit prior to decedent's death and immediately following his appointment as executor; that the defendant executor delayed the filing of the suggestion of death until after the time provided by statute for filing claim against decedent's estate had expired; and that promptly upon becoming advised of said death plaintiff took steps resulting in the defendant-appellee being substituted as the proper party defendant.

The primary point for determination is whether the pleadings, deposition, admissions, and affidavits on file in this cause present a genuine issue of material fact on the question of whether the acts of omission or commission performed on behalf of the defendant Phillips, or those of the defendant executor of his estate, estop the latter from asserting the non-claim statute in bar of this action.

The statute (F.S. § 733.16, F.S.A.) operates to bar any claim against the estate of a decedent unless notice thereof in specified form is filed in the county judge's court in which administration is pending within eight months from the date of the first publication of notice to creditors, and pendency of suit against the deceased at the time of death does not relieve the plaintiff of the necessity to file the notice. The statute also provides, in effect, that if suit on the claim is filed against and service of process had upon the personal representative of the decedent within eight months from the time of the first publication of the notice to creditors, it is unnecessary to file the notice in respect to the claim involved in the suit. In that case the personal representative is charged with the duty to file in the probate court a suggestion of the pendency of the suit. It is the general rule that unless the requirements of the statute are strictly complied with, action on the claim will be barred. However, as is so often the case when seeking to strictly apply dogma to facts, the situation here presented provides a classic example for the proverbial 'exception that proves the rule.'

Analysis of the non-claim statute and of the hereinafter discussed Rule 1.19(a)(1), 1954 Florida Rules of Civil Procedure, 30 F.S.A., reflects a common purpose to provide for the prompt and efficient termination of the affairs of deceased persons and to preserve, within the limitations expressed, the rights of persons having lawful claims against the estate. There is no implication in either that it is usable as a vehicle to divest persons of their lawful claims, as distinguished from barring enforcement thereof under the conditions specified

Rule 1.19(a)(1), 1954 Florida Rules of Civil Procedure, relating to substitution of parties, provides:

'(1) If a party dies and the claim is not thereby extinguished, the court within 2 years after the death may order substitution of the proper parties. If substitution is not so made, the action shall be dismissed as to the deceased party. The motion for substitution may be made by the successors or representatives of the deceased party or by any interested party and, together with the notice of hearing, shall be served on the parties as provided in Rule 1.4 and upon persons not parties in the manner provided by law.'

It is obvious that this rule is primarily designed to breathe life into the action, to revitalize it as an efficient instrumentality of the law. Its secondary purpose is to bring an end to litigation. It does not, however, establish a one-way street to be trod motionwise only by the party plaintiff in order to accomplish these ends. Indeed, the emphasis, if any, is upon 'the successors or representatives of the deceased' as persons who 'may' make the motion to substitute the proper party. And while the rule does not cast on a party having knowledge of the death a positive duty to move that the proper party be substituted for the deceased, it clearly does not relieve a legal representative of the...