Jones v. Allen
| Decision Date | 31 October 1938 |
| Citation | 134 Fla. 751,184 So. 651 |
| Court | Florida Supreme Court |
| Parties | JONES et al. v. ALLEN. |
Rehearing Denied Dec. 10, 1938.
Error to Circuit Court, Levy County; H. L. Sebring, Judge.
Action by Mary Etta Jones and husband, W. R. Jones, against Edith C Allen, as administratrix of the estate of Bundy Allen deceased, for injuries sustained when the bus in which Mary Etta Jones was passenger was struck by an automobile operated by the decedent. Judgment for defendant, and plaintiffs bring error.
Affirmed.
COUNSEL Fielding & Duncan, of Gainesville, for plaintiffs in error.
Baxter & Clayton, Clara B. Floyd, and Clark Gourley, all of Gainesville, for defendant in error.
The plaintiff in error, Mary Etta Jones, was injured in an automobile accident November 23, 1935, in Levy County. Bundy Allen of Hillsborough County was the owner and driver of the automobile which collided with the motor bus in which Mary Etta Jones was riding and he (Allen) was killed in the same accident. Edith C. Allen was appointed administratrix of Allen's estate.
In February, 1936, Mary Etta Jones joined by her husband, W. R Jones, brought this action for personal injuries against said administratrix. The pleadings were filed, the issues were perfected and the cause was ready for trial at the September Term, 1936. Over the objection of the plaintiff, defendant was on September 23, 1936, permitted to file a new and an additional plea to the declaration. Replications to said additional plea were then filed and demurrer thereto was sustained. A final judgment was entered on the demurrer and the instant writ of error was prosecuted.
The first question presented is whether or not an action for personal injuries against the representative of an estate is barred because of failure of the claimant to file in the office of the county judge a sworn statement in writing of his claim or demand within eight months from the time of the first publication of the notice to creditors.
The answer to this question turns on the interpetation to Section 120 of the Probate Act of 1933, Section 5541(92), Vol. 5 Permanent Supplement, Compiled General Laws of 1927, the pertinent part of which is as follows:
A proviso to the act as quoted enumerates certain exceptions but none of them covers the claim in question so we do not list them here.
The record discloses that the first notice to creditors was published January 18, 1936. The time for filing a sworn statement of Mrs. Jones' claim in writing with the county judge expired by terms of the Act September 18, 1936. The additional plea filed September 23, 1936, suggested that no such claim had been filed as the law directed and bring so, it could not now be asserted. The trial court sustained the plea. The plaintiff later on September 29, 1936, filed her claim as directed.
We think the judgment of the trial court was correct. The statute in terms applies to all claims or demands, whether due or not, direct or contingent, liquidated or unliquidated or claim for personal property in the possession of the personal representative or for damages and if not done, declares them void even though they have been recognized and payments made on them. The act, in other words, was designed to cover every claim against the estate of a deceased person except those in terms...
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...during trial.' We hold that this decision is in direct conflict with previous decisions of this Court, and particularly Jones v. Allen, 1938, 134 Fla. 751, 184 So. 651. In Jones v. Allen we held, 'It is the policy of the law in this state to permit additional pleas any time before verdict a......
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