Perry v. Reichert

• Decision Date: 05 December 1933
• Citation: 113 Fla. 125,151 So. 403
• Parties: PERRY v. REICHERT et al.
• Court: Florida Supreme Court

151 So. 403

113 Fla. 125

PERRY v. REICHERT et al.

Florida Supreme Court, Division B.

December 5, 1933

Error to Circuit Court, Polk County; H. C. Petteway, Judge.

Suit by George D. Perry against Cathryn Reichert and another, as the duly qualified and ancillary administrators of the estate of John Reichert, deceased. Judgment for defendants, and plaintiff brings error.

Affirmed.

COUNSEL G. P. Garrett, of Orlando, for plaintiff in error.

Johnson Bosarge & Allen, of Bartow, for defendants in error.

OPINION

BUFORD Justice.

This case is before us to review judgment for the defendant entered upon the demurrer being overruled to a plea invoking the statute of limitations.

The declaration in effect alleges that on the 4th day of January 1932, one John Reichert, a citizen of Wisconsin, died intestate in that state, being at the time of his death indebted to plaintiff in the sum of $1,082.39 as principal, plus interest from the 18th day of May, 1928 at 8 per cent., for labor and material furnished by the plaintiff to John Reichert in his lifetime in and about certain citrus grove properties belonging to John Reichert in his lifetime in Polk county, Fla.

An itemized bill of particulars is attached to the declaration and made a part thereof.

The declaration alleges further in effect that, after the death of Reichert, the defendant in this suit, the sheriff of Polk county, Fla., was on November 13, 1932, appointed as administrator ex officio of the estate of John Reichert, deceased; that John Reichert left at the time of his death certain lands and tenements situated in Polk county, Fla.; that he was then indebted to plaintiff in said county and no administration had been taken out of the estate of John Reichert prior to the appointment of the sheriff as administrator; that the plaintiff filed a sworn claim with the county judge of Polk county claiming as against the said estate of John Reichert, deceased, and the assets of the deceased in the hands of the defendant sheriff as ex officio administrator of said estate, the amount of said indebtedness due to the plaintiff by John Reichert at the time of his death.

The bill of particulars attached to the declaration is an itemized statement apparently for work done and for fertilizer furnished. The first day appearing on the account appearing as the bill of particulars is June 1, 1927, the item being: 'To watering trees, $3.00.' The last items are dated May 9, 1928, and these are: 'To spraying with lime sulpher, $30.00; lime sulpher solution, $14.25; hauling water, $12.00.'

After the institution of suit, a stipulation was entered into by attorneys of record, as follows:

'It is hereby stipulated that all the papers, files and proceedings, including process, in the above case, shall be, and they are hereby amended so as to substitute in the place and stead of 'J. A. Johnson as Sheriff of Polk County, Florida, and ex officio administrator of the estate of John Reichert, deceased', the following, viz.: 'Cathryn Reichert and Hubert Reichert, as the duly qualified and ancillary administrators of the State of John Reichert, deceased', as defendants.

'It is further stipulated that the defendants shall file defense pleadings in this cause on or before the February Rules A. D. 1933.

'This the 31st day of January, A. D. 1933.'

The second and fourth pleas of the defendants were as follows:

'2nd. That the alleged cause of action did not accrue within three years before this suit.

'4th. That from Exhibit I attached to plaintiff's declaration and made a part thereof it appears that the last entry on itemized account was on the 11th day of May, 1928; that said date...