Granat v. Biscayne Trust Co.

• Decision Date: 19 April 1933
• Parties: GRANAT v. BISCAYNE TRUST CO.
• Court: Florida Supreme Court

147 So. 850

109 Fla. 485

GRANAT v. BISCAYNE TRUST CO.

Florida Supreme Court

April 19, 1933

En Banc.

Error to Circuit Court, Dade County; Paul D. Barns, Judge.

Action by V. B. Granat, a widow, against the Biscayne Trust Company as executor of the estate of A. S. Dulbs, deceased. To review a judgment dismissing the suit, plaintiff brings error.

Reversed with directions.

COUNSEL Roland W. Granat, of Miami, for plaintiff in error.

Wilder & Jacobsen, of Miami, for defendant in error.

OPINION

BUFORD Justice.

This case is before us on writ of error to the circuit court of Dade county attacking the judgment of the circuit court dismissing the suit on sustaining demurrer to the declaration.

The declaration was in one count. The suit was against Biscayne Trust Company, a Florida corporation, as executor of the estate of A. S. Dulbs, deceased. The basis for the action was that Dulbs during his lifetime, a judgment creditor of the plaintiff, wrongfully and unlawfully caused levy of execution to be made upon certain personal property and such personal property to be taken into custody of the sheriff and held by him. It is alleged in the declaration:

'And the plaintiff further alleges that the said Henry R. Chase Sheriff of Dade County, Florida, did, on or about the 8th day of August, 1928, return and replace the aforesaid goods and chattels and personal property upon the aforesaid premises with the exception that certain parts and portions of the said personal property were injured, damaged, broken, destroyed or missing, as will more fully appear from the Bill of Particulars attached hereto and asked to be taken and made a part hereof.

'Wherefore, the plaintiff charges that the said levy, seizure, taking and retaining of the said goods and chattels was illegal and unlawful and that thereby the said A. F. Dulbs became liable for all injury and damage sustained by the Plaintiff as the proximate result of the aforesaid illegal and unlawful act of the said Henry R. Chase acting as Agent and under the direction of the said A. F. Dulbs.

'And the Plaintiff further charges that as a proximate result of the said illegal and unlawful acts the Plaintiff was injured and damaged in that she was deprived of the reasonable income in rents from her said property for a long period of time and that she was compelled to employ and attorney to compel the return of the said goods and chattels and thereby obligated herself to pay such attorney a reasonable compensation for services in that behalf; and that she was compelled to expend great sums of money for expenses necessary to compelling the return of the said goods and chattels, and that said goods and chattels and her said real property were injured and damaged and made less fit for use and that her credit, reputation and the reputation of her property were impaired and injured and that she suffered great mental pain, anguish, humiliation and ill health thereby, all of which is more completely enumerated, set forth and explained in the Bill of Particulars attached hereto and hereby made a part hereof. * * *

'Wherefore, the Plaintiff brings this suit and claims damages in the sum of Twenty Thousand ($20,000) Dollars.'

It is also therein alleged that, subsequent to the acts complained of, Dulbs died, and Biscayne Trust Company, a Florida corporation, was duly qualified as executor of the estate of Dulbs, and was at the time of the institution of the suit acting as such executor. She (plaintiff) alleges damages in the gross sum of $20,000.

There was a demurrer to the declaration which was sustained.

The demurrer presented two questions. The first was whether or not the alleged tort-feasor was liable for damages for the acts of the sheriff performed under his direction in the unlawful seizure of the goods of the plaintiff. The other was whether or...