Jones v. Townsend

• Decision Date: 15 June 1887
• Parties: JONES and others v. TOWNSEND, Adm'x.
• Court: Florida Supreme Court

2 So. 612

23 Fla. 355

JONES and others v. TOWNSEND, Adm'x.

Florida Supreme Court

June 15, 1887

Appeal from Fourth judicial circuit, Duval county.

Syllabus by the Court

SYLLABUS

The right of action for a libel dies, in this state, with the plaintiff, and the action cannot be revived in favor of his personal representative. Jacksonville St. Ry. Co. v Chappell, 22 Fla. 616, 1 South. Rep. 10, reviewed and approved.

COUNSEL Randall, Walker & Foster, for appellants.

H. H Buckman, for appellee.

OPINION

RANEY J.

The intestate sued the appellants for libel, and recovered a judgment, from which appellants appealed to the January term 1885, of this court. Pending this appeal, the intestate died and the administratrix was made a party here, and the judgment was reversed at that term. Upon the cause being remanded, notice, entitled in the cause as originally instituted, was given on September 17, 1885, to the intestate's attorney, who was also attorney for the administratrix, that a motion would be made at the succeeding term of the circuit court to abate the action, on the ground that it did not survive to his legal or personal representative. No action appears to have been taken upon this notice either by counsel or the court. On February 1, 1886, an order was made reciting a suggestion of the death of Townsend, and the filing of letters of administration, and a docketing of the case in the name of the administratrix, and ordering that the administratrix be made a party to said suit, and that the same proceed in the name of said administratrix as entitled of record. A trial was had at the spring term, 1886, resulting in a verdict and judgment for the plaintiff. The defendants have appealed.

If the right of action did not survive to the personal representative of the intestate, the above order should not have been made, and all subsequent proceedings are erroneous. In Jacksonville St. Ry. Co. v. Chappell, 22 Fla. 616, 1 South. Rep. 10, which was an action in tort to recover damages for personal injuries received by a passenger through the negligence of a common carrier, we held that the right of action died with the plaintiff, and should not have been revived in favor of his personal representative; that such was the rule not only at common law, but also under our statute. If this decision is correct, it is clear that the present action abated on the death of Townsend. Counsel for the appellee asks us to review the decision, and we have done so cheerfully and with proper care, but are unable to see any error in its conclusion or reasoning.

The first statute we find upon the subject is that approved January 19, 1827, an act regulating judicial proceedings. It provided (section 12) that in all cases were the plaintiff should die after service of process, and before final judgment, such action should not abate, if the same might be originally prosecuted and maintained by the executors or administrators of such plaintiff; and if defendant die after service of the process, and before final judgment, such action should not abate if the same were originally maintainable against the executors or administrators of such defendant, and then makes provision for making parties. The next statute is that approved January 19, 1828, entitled 'An act to revise and amend the judiciary system of this territory.' It provides, by section 40, that 'no suit in any of said courts shall abate by the death of either party where the cause of action would in any case survive to the executor or administrator; but the same shall proceed as if such testator or intestate had not died;' and prescribes the time and mode for making parties. The forty-third section of this act is, omitting the enacting clause, as follows: 'That all actions for assault and battery, slander, false imprisonment and malicious prosecution, shall abate upon the death of either plaintiff or defendant.' Our present statute is that of November 23, 1828, entitled 'An act regulating judicial proceedings.' Its twenty-eighth section is the same as the fortieth section of the former act, and is to be found on page 332 of Thompson's Digest; and its thirtieth section is: 'That hereafter all actions for personal injuries shall die with the person, to-wit, assault and battery, slander, false imprisonment, and malicious prosecutions. All other actions shall and may be maintained in the name of the representatives of the deceased.' McClel. Dig. 830.

It is perfectly clear to our minds that there is nothing in the act of 1827, or in that of January 19, 1828, which changes the common law so as to make any right of action survive to a personal representative which did not survive at common law. The forty-third section of the act of January, 1828, is only declaratory of the common law as to certain causes of action. It says nothing about any other causes of action which die with the person, or about any which do not so die. Viewed in connection with section 40 of the same act, it cannot be held to have been intended to make any cause of action survive which did not do so before.

It is argued by counsel for appellee that the common law being in force here at the passage of the act of January, 1828, a careful examination of it, and the act of November, 1828 leads...