Mutual Life Ins. Co. v. Hartley

• Decision Date: 13 July 1926
• Citation: 109 So. 421,92 Fla. 237
• Parties: MUTUAL LIFE INS. CO. v. HARTLEY.
• Court: Florida Supreme Court

109 So. 421

92 Fla. 237

MUTUAL LIFE INS. CO. v. HARTLEY.

Florida Supreme Court, Division B.

July 13, 1926

Error to Circuit Court, Volusia County; J. J. Dickinson, Judge.

Action by Bessie Hartley against the Mutual Life Insurance Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

Syllabus by the Court

SYLLABUS

Where a writ of error is made returnable to a day not authorized by law, the writ is ineffectual, and will be dismissed.

When a purported writ of error is not even colorably the writ of the court to which it is returnable, it is not amendable, and will be dismissed.

Writs of error may be amended as to parties and as to formal defects upon due application.

Writs of error issued may be amended on appropriate proceedings duly taken within proper time, and formal defects may be regarded as amended if writ is not issued contrary to statutes (5 Geo. 1, c. 13; Rev. Gen. St. 1920, §§ 71, 2629). Under the English statute of 5 Geo. 1, c. 13, and sections 71 and 2629, Revised General Statutes of 1920, writs of error issued for this court may be amended upon appropriate proceedings duly taken within proper time, and formal defects may by the court be regarded as amended, when the writ is not issued in violation of the statutes.

In action by beneficiary on life insurance policy, pleas that offer of insured in lifetime to surrender policy for cash value, which was not paid, was accepted, and policy was canceled, but no averring consent or acquiescence of beneficiary therein, are subject to demurrer. In an action on an insurance policy brought by the beneficiary other than the insured, pleas averring that the insured in his lifetime offered to surrender the policy for its cash value (which was not paid), and the insurer accepted the offer and canceled the policy, but not averring the consent or acquiescence of the beneficiary in the asserted surrender and cancellation of the policy, are subject to demurrer.

Writ of error tested in name of former Chief Justice of Supreme Court, not member thereof at tiem of issuance, will regardless of Rev. Gen. St. 1920, § 2908, be regarded as amended, in view of 5 Geo. 1, c. 13, and Rev. Gen. St. 1920 § 2629.

COUNSEL

Doggett, Christie & Doggett and R. Swinnerton, all of Jacksonville, for plaintiff in error.

Landis Fish, Hull & Whitehair, of De Land, and L. C. Crofton, of Lakeland, for defendant in error.

OPINION

WHITFIELD P.J.

The writ of error herein, issued by the clerk of the circuit court, is tested in the name of a former Chief Justice of this court who was not a member of the court when the writ of error was issued. The writ is therefore ineffectual, unless it is amendable, since the statute provides that 'all writs of error shall be tested in the name of the Chief Justice of the Supreme Court.' Section 2908, Rev. Gen. Stats. 1920.

In Williams v. Pitt, 38 Fla. 162, 20 So. 936, the writ was tested in the name of a former Chief Justice, who was then a member of the court, and the error was held to be amendable. See Long v. Farmers' State Bank, 147 F. 360, 77 C. C. A. 538, 9 L. R. A. (N. S.) 585; 3 C.J. 1209.

Where a writ of error is made returnable to a day not authorized by law, the writ is ineffectual, and will be dismissed. Driggs v. Higgins, 19 Fla. 103; Rye v. Banks, 66 Fla. 434, 63 So. 825; Savannah, F. & W. Ry. Co. v. Justice, 41 Fla. 508, 26 So. 704; Anderson v. State, 73 Fla. 86, 74 So. 6.

When a purported writ of error is not even colorably the writ of the court to which it is returnable, it is not amendable, and will be dismissed.

Bondurant v. Watson, 103 U.S. 278, 26 L.Ed. 447.

Writs of error may be amended as to parties and as to formal defects upon due application. West v. Johnson, 66 Fla. 4, 62 So. 913; Texas & P. Ry. Co. v. Kirk, 111 U.S. 486, 4 S.Ct. 500, 28 L.Ed. 481; Long v. Farmers' State Bank, supra.

The English statute of 5 Geo. 1, c. 13, provides:

'That all writs of error wherein there should be any variance from the original record, or other defect, may and shall be amended and made agreeable to such record by the respective courts where such writ or writs of error shall be made returnable.'

This statute is in force in this state (Thomp. Comp. Manuscript p. 38), unless it is superseded by the severty-fourth section, chapter 1096, Laws 1861, and, if it is so superseded, the same power is vested in the courts under the seventy-fourth section, now section 2629, Revised General...