Robinson v. Epping

• Decision Date: 17 July 1888
• Citation: 24 Fla. 237,4 So. 812
• Court: Florida Supreme Court
• Parties: ROBINSON v. EPPING et al.

4 So. 812

24 Fla. 237

ROBINSON v. EPPING et al.

Florida Supreme Court

July 17, 1888

Appeal from circuit court, Escambia county; JAMES F. McCLELLAN Judge.

This case was before this court on an appeal taken by Epping Bellas & Co., and an opinion was rendered at the June term 1884, holding the first plea to be good and the second to be insufficient, and reversing the judgment of the circuit court. See 21 Fla. 36. Upon the remanding of the cause, the circuit court made an order giving leave to the parties to amend their pleadings. The first plea, which, as stated, was held to be good, is as follows: 'As to the appointment of Walter Tate, administrator of the estate of said Y. S Hirschfelder, alleged in said declaration, that the said Y. S. Hirschfelder was never a resident of Florida, but for many years prior thereto, and at the time of his death, mentioned in said declaration, had been, and was, a resident of Alabama, and died at a place out of the state of Florida, and at the time of his death was not possessed of any goods, chattels, or lands in any county in this state; by reason whereof the appointment of said Walter Tate (which defendant avers was procured by the plaintiffs in this action, and not by the production of legal authority from the representatives of the deceased Hirschfelder, qualified by law in the state of Alabama) was without any authority of law of jurisdiction in said county court of Escambia county, as appears upon the face of and by the records of said county court, and was and is altogether void and of no effect.' See 21 Fla. 38 The defendant, under the order allowing amendments, and just mentioned, amended his second plea to read as follows: 'Second. There was no final determination of the case between the plaintiff in this suit and the said Y. S. Hirschfelder, as, pending said suit, Hirschfelder died, as stated in the declaration, and no legal representative of said deceased party revived said suit, nor was any legal representative of said deceased party made party to said suit, for defendant says that said Y. S. Hirschfelder died at a place out of the state of Florida, and at the time of his death was not possessed of any goods, chattels, or lands in this county; nor were there any debts due to said deceased Hirschfelder from persons or a person living in this county, for the collection of which the said Walter Tate or any other person produced or had legal authority from the representatives of the deceased Hirschfelder to be appointed administrator. And the defendant avers that the facts necessary to confer jurisdiction, that is to say, the contrary of the allegations in this plea made, were not presented to and adjudicated by the county court in granting letters of administration to said Tate, as appears by the records of its proceedings.' The defendant also filed four other pleas. The third plea has been abandoned, and will not be noticed. The fourth, fifth, and sixth pleas are as follows: 'Fourth Plea. That the bond in the declaration mentioned was made, as appears on its face, in view of an alleged consent decree for an account, and for dismissal of a suit at law in this court by plaintiffs herein against Hirschfelder, the principal in such bond; but said suit at law had not been, and was not dismissed at the commencement of this action. Fifth Plea. That the appointment of Walter Tate as administrator of Hirschfelder was without authority of law, and void in this: That the said county court of Escambia county had no jurisdiction to grant letters of administration on the estate of said Hirschfelder, because he, the said Hirschfelder, was a citizen and resident of the state of Alabama, and died in said state, and it does not legally appear by the records of said county court that the citation required by law was duly published and posted, or that said Hirschfelder had assets in said county on which the said county court could grant letters of administration, wherefore defendant says the letters of administration are void, and did not give legal authority for any proceeding against said Tate, as the representaative of the estate of Hirschfelder. Sixth Plea. That the appointment of Tate as administrator of Hirschfelder was made upon citation issued without any petition or complaint in writing upon which to base such citation, and that the county court, in the absence of such a petition, had no authority or jurisdiction to issue the citation or grant letters of administration on such citation, whereupon the letters are void, and did not authorize any proceeding by plaintiff against Tate, as such administrator, in the suit in which the decree was never given against him as such administrator.' To the first plea, the plaintiff replied that the county court did have and possess authority and jurisdiction to grant the letters of administration, inasmuch as Hirschfelder died leaving assets in said county of Escambia, to be administered as appears from the records of said county court, and no administrator of the estate of said Hirschfelder having been previously appointed by said county court. To this replication the defendant rejoined that the county court did not have and possess such authority and jurisdiction by reason of anything that appears in the record of said county court as to assets left by said Hirschfelder in said county. The plaintiffs demurred to the second, fourth, and sixth pleas as bad in substance, and joined issue on the fifth plea. The demurrer to the fourth and sixth pleas was sustained by the circuit court, but that to the second plea, as amended, was overruled. After this the plaintiff filed replications to the first plea and the amended second plea, as follows: To the first and second pleas, that it is not true that it appears by the record of the probate court that it did not have jurisdiction, as alleged in such plea, to grant letters of administration to Walter Tate upon the estate of Y. S. Hirschfelder. He also at the same time replied to the fifth plea that it is not true that it did not appear from the record of the probate court that it had jurisdiction, as alleged in said plea, to grant letters of administration upon the estate of said Hirschfelder. The issues were tried by the court without a jury. The plaintiff offered in evidence a certain transcript of record of the county court of Escambia county, as follows: 'Notice. In the Matter of the Estate of Y. S. Hirschfelder, Deceased. Notice. The next of kin of Y. S. Hirschfelder, deceased, late of Conecuh county, Alabama, and all others whom it may concern, are hereby notified that six weeks after the first publication hereof, and their failure to apply for administration on his estate, I will appoint some creditor of Hirschfelder or other fit person to administer on the same as may be authorized by law. [Signed] N. C. SHACKLEFORD, County Judge. January 3, 1882.'

'In the Matter of the Estate of Y. S. Hirschfelder, Deceased. Citation having been published for six weeks, as required by law, and no person entitled to administration having applied, therefore letters of administration have this day been issued to Walter Tate, he having given bond under oath, and otherwise qualified according to law. Dated this 15th day of April, A. D. 1882. N. C. SHACKLEFORD, County Judge.'

'State of Florida, Escambia county. Before me this day came Walter Tate, who, being duly sworn, says that to the best of his knowledge and belief that there are no heirs of Y. S. Hirschfelder, dec'd, residing in this state or out of it; that the deceased died leaving an estate in this county, consisting of an unliquidated claim, the amount whereof deponent cannot state; that the said deceased left no will. And the said deponent further says that he will well and truly administer all and singular the goods and chattels, assets and credits of said deceased, and make a true and just inventory of the same, pay his debts as far as the assets of the estate shall extend and the law direct, and make a fair distribution according to law, and render a true account of the administration of the estate when thereto required. [Signed] WALTER TATE. Sworn to and subscribed before me this 13th day of -----, A. D. 1882. N. C. SHACKLEFORD, County Judge. Indorsed: Estate of Y. S. Hirschfelder, deceased. Affidavit of administrator.'

Then follows an administration bond by Tate, with George W. Wright and M. H. Sullivan as sureties, bearing date the 13th day of -----, A. D. 1882, with the usual conditions, and approved by N. C. Shackleford, county judge, and indorsed 'Estate of Y. S. Hirschfelder, deceased. Administrator's bond. Filed April 15, 1882.'

'State of Florida, Escambia County. Escambia County County Court. In the Matter of the Estate of Y. S. Hirschfelder, Deceased. To All Whom it May Concern. Whereas, Walter Tate has this day filed his bond, with two good and sufficient sureties thereon, as administrator upon the estate of Y. S. Hirschfelder, deceased, and having duly qualified according to law, therefore know ye that letters of administration are hereby granted unto the said Walter Tate upon all and singular the goods and chattels, rights and credits, of Y. S. Hirschfelder, deceased, and he is hereby duly authorized and empowered to take charge of and manage and control the same in whomsoever hands or possession the same may be, and to do such other acts as may be prescribed by law in such cases made and provided. Given under my hand and seal this the 15th day of April, A. D. 1882. N. C. SHACKLEFORD, County Judge.'

'State of Florida, Escambia County. In the Matter of Y. S Hirschfelder, Deceased. Inventory. One suit in the circuit court of Escambia county, Fla., (bill in chancery,) instituted by deceased on the 22d of February, 1877, against late firm of Epping, Bellas...