Epperson v. Rupp, 63-220

• Court: Florida District Court of Appeals
• Writing for the Court: Before BARKDULL; BARKDULL; PEARSON, TILLMAN
• Citation: Epperson v. Rupp, 157 So.2d 537 (Fla. App. 1963)
• Decision Date: 19 November 1963
• Docket Number: No. 63-220,63-220
• Parties: Clyde A. EPPERSON, Appellant, v. Marie RUPP, Executrix of the Estate of Alverda F. Ryan, Appellee.

Page 537

157 So.2d 537

Clyde A. EPPERSON, Appellant, v. Marie RUPP, Executrix of the Estate of Alverda F. Ryan, Appellee.

No. 63-220.

District Court of Appeal of Florida, Third District.

Nov. 19, 1963.

Edward C. Vining, Jr., Miami, for appellant.

Curtiss B. Hamilton, No. Miami, for appellee.

Before BARKDULL, C. J., and HORTON, and TILLMAN PEARSON, JJ.

BARKDULL, Chief Judge.

By these proceedings, the appellant seeks review of an order denying his motion to strike an 'objection' to his claim in a probate proceeding. The initial inquiry is as to whether this court has jurisdiction to review such an order by final appellate proceedings. In this connection, our attention has been directed to previous opinions of this court, found in: In re Nolan's Estate, Fla.App.1959, 114 So.2d 341, and in Birnbaum v. Feinstein, Fla.App.1961, 129 So.2d 164, which relate to this jurisdictional question. The first opinion indicates that such an order is reviewable by this type of proceedings and the latter opinion indicates that it is not.

The appellant filed a claim which was objected to by a written 'objection', signed only on behalf of the personal representative by his counsel. The claimant then filed a motion to strike the objection, contending that same should have been executed by the personal representative, which motion was denied by an appropriate order of the probate judge and this appeal ensued. The effect of the order denying the motion to strike the objection to the claim brought to a conclusion all judicial labor in the probate court in reference to the purported claim, and was '* * * a final determination of his [appellant's] claimed rights against the estate. * * *'. We hold that same is such an order as is reviewable, pursuant to the Florida Appellate Rules applicable to review of final orders, judgments or decrees, and in accordance with the reasoning quoted above, found in the opinion In re Nolan's Estate, supra. Anything to the contrary set forth in Birnbaum v. Feinstein, supra, is hereby specifically receded from.

Therefore, finding that we have jurisdiction to consider this matter, we now turn to the merits of the cause as raised by the assignments of error, as preserved in the brief, to wit: whether or not an attorney for a personal representative may file an objection to a claim. The appellant contends that any objection filed to a claim pursuant to the provision of § 733.18, Fla.Stat., F.S.A., must be signed by the personal representative. The appellee contends that the objection may be signed by the counsel of record for the personal representative. We conclude that the proposition must be answered adversely to the appellant, and hold that an attorney of record for a personal representative may sign and file an objection to a claim in an estate. § 733.18 (2), Fla.Stat., F.S.A. does not require that only the personal representative sign an 'objection' and there is no provision in the statutes prohibiting a personal representative's attorney filing such an 'objection'. Generally, an attorney is an...