Lee v. Puleston
| Decision Date | 01 October 1931 |
| Citation | 102 Fla. 1079,137 So. 709 |
| Parties | LEE et al. v. PULESTON et al. |
| Court | Florida Supreme Court |
Error to Circuit Court, Seminole County; W. W. Wright, Judge.
Action by Charles G. Lee and others, copartners, doing business as Lee, Ford & Coxe, against S. Puleston and another. Judgment for the defendants, and the plaintiffs bring error.
Reversed.
Syllabus by the Court.
The question of necessary parties to a suit is governed by the law of the forum in which the suit is brought.
The common-law doctrine applicable to the question here involved has been changed and abrogated by statute. At common law it is the settled doctrine that in cases of a joint obligation if one of the joint obligors dies before the obligation is discharged, his representative is in law discharged, and the surving obligors alone can be sued. The provisions of section 2571, Rev. Gen. St. 1920, section 4211, Comp. Gen. Laws 1927 have abrogated the common law in this regard.
A separate suit may be maintained against the legal representative of a deceased obligor, if the obligation bound the deceased obligor severally, yet the suit cannot be maintained jointly against the surviving joint obligors and the legal representative of the deceased joint obligor because the one is to be charged de bonis testatoris, the other de bonis propriis, forms of judgment that the rules of common law governing the law courts are not flexible enough to permit them to include the same judgment.
George P. Garrett, of Orlando, for plaintiffs in error.
De Cottes & Spencer, of Sanford, for defendants in error.
The writ of error is to a judgment for the defendants on demurrer being sustained to an amended declaration.
The suit was against S. Puleston and Edward Higgins on a note dated Asheville, N. C., October 16, 1926, for the sum of $1,500 payable two months after date and executed by George W. Knight, S. Puleston, and Edward Higgins. The suit was filed in the circuit court of Seminole county, Fla., and the amended declaration was in four counts. The first count was as follows:
The next three counts are common counts.
The question presented here is: 'Where three persons execute and deliver a joint promissory note and one of the makers of such note dies while the obligation is still in force, does the liability on said note devolve upon the survivors only?'
The judgment in the court below was entered upon the theory that the representative of the deceased joint maker of the note was a necessary party.
The question of necessary parties to a suit is governed by the law of the forum in which the suit is brought. Norton on Bills and Notes (3d Ed.) Hornbook, 190.
Section 71, Rev. Gen. St. 1920, section 87, Comp. Gen. Laws 1927, provides as follows:
'The common and statute laws of England which are of a general and not a local nature, with the exception hereinafter mentioned, down to the fourth day of July, 1776, are hereby declared to be of force in this State: Provided, the said statutes and common law be not inconsistent with the Constitution and laws of the United States and the acts of the Legislature of this State.'
The common-law doctrine applicable to the question here involved has been changed and abrogated by statute. At common...
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... ... forms of judgment that the rules of law governing the law ... courts are not flexible enough ... [167 So. 10] ... to permit to be included in the same judgment. City of ... Orlando v. Gooding, 34 Fla. 244, 15 So. 770; Lee v ... Puleston, 102 Fla. 1079, 137 So. 709 ... In tort ... actions it has been held that where one of the defendants ... dies pending suit, his personal representative cannot be ... brought by scire facias on the record, as the same judgment ... cannot be rendered and the same execution asserted ... ...
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Hertz Corp. v. Piccolo
...the tortfeasor's insurer based on a Louisiana direct action statute. The decision of the district court conflicts with Lee v. Puleston, 102 Fla. 1079, 137 So. 709 (1931). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We approve the district court Frank Piccolo was injured in a motor ......
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Phillippi Creek Homes, Inc. v. Arnold, 4701
...in this case the representative of Jack N. Arnold's estate. City of Orlando v. Gooding, 1894, 34 Fla. 244, 15 So. 770; Lee v. Puleston, 1931, 102 Fla. 1079, 137 So. 709; Corlett v. Oliver, 1932, 107 Fla. 403, 144 So. 877, 145 So. 886. Thus it was error to grant the motion to dismiss. It rem......