Whitlock v. Willard

• Decision Date: 01 January 1881
• Citation: 18 Fla. 156
• Parties: THOMAS L. WHITLOCK, APPELLANT, v. THEODORE H. WILLARD, SHERIFF AND EX-OFFICIO ADMINISTRATOR OF BENJAMIN F. WHITLOCK ET ALS., APPELLEES
• Court: Florida Supreme Court

18 Fla. 156

THOMAS L. WHITLOCK, APPELLANT, v. THEODORE H. WILLARD, SHERIFF AND EX-OFFICIO ADMINISTRATOR OF BENJAMIN F. WHITLOCK ET ALS., APPELLEES

Supreme Court of Florida

January 1, 1881

Rehearing Denied 18 Fla. 156 at 158. Rehearing Denied 18 Fla 156 at 165.

Original Opinion of January Term, A. D. 1881, Reported at: 18 Fla 156.

Appeal from the Circuit Court for Leon county, to which the case was transferred from Madison county.

The intestates mentioned in the bill, and of whose estates T. H Willard is administrator, are Lewis D. Whitlock and Benjamin F. Whitlock. The appeal was brought to the January Term, 1880, and the opinion as to dismissing it was filed at that term. There was no motion to dismiss.

The other facts bearing on the question of dismissal are stated in the opinion.

Appeal dismissed.

Pasco & Palmer and J. N. Stripling, for appellants, cited in support of the view that an administrator cannot maintain a suit for partition Freeman on Cotenancy, §§ 454-471; Thomp. Dig., 382; Nason vs. Williard, 2 Mass. 478; Speer vs. Speer, 14 N. J. Eq., 240; Barbour on Parties, 273, et seq.

Angus Paterson, for Willard, the administrator, contending that an administrator could maintain such a suit, cited Thomp. Dig., 202; Blewitt, Adm'r, vs. Nicholson, Ex'r, 1 Fla. 384, and 2 Fla. 200; Gilchrist vs. Filyau and wife, 2 Fla. 94; Union Bank vs. Heirs of Powell, 3 Fla. 175; Scott vs. Lloyd et ux., 16 Fla. 151.

J. B. Marshall for W. W. Whitlock and the heirs of L. A. M. Thomas.

C. W. Stevens, guardian ad litem of John Henry Jones et als., minors, in pro. per.

R. B. Whitfield, guardian ad litem of Hattie C. Thomas et als., in pro. per.

OPINION

MR. JUSTICE WESTCOTT.

This is an appeal from a decree rendered by the Circuit Court of the Second Judicial Circuit for Leon county on the 24th day of September, A. D. 1879.

The bill was by Willard as the legal representative of the intestates mentioned. He alleged that under the will of Joseph Wardlaw, deceased, his intestates were entitled to a portion of a tract of land in Madison county.

The bill was brought against several parties, among others against Thomas L. Whitlock, the appellant, who claimed an interest as heir-at-law of some of the devisees under the will, who had died, and as a party who had been in possession of the estate, appropriating the rents and profits thereof, and who claimed a homestead in a part of the estate.

The decree from which this appeal is taken settles the interest of all the parties in the land. In addition to the defendant, the other parties against whom the decree was rendered, and who claimed an interest in the land, were William W. Whitlock, L. A. Minor Thomas, William S. Vandiver, Hattie Vandiver, James Jones, Lucia Jones, Oscar D. Jones, John H. Jones, Anna Jones, Thomas S. Crayton and Thomas S. Crayton, Jr.

The primary object of the bill was for a partition, and the decree awarded a partition in accordance with the views of the chancellor as to the interests of the various parties having rights under the will.

The questions discussed upon the hearing here were very interesting, but after a careful examination of these questions, and when ready to dispose of the case upon the merits, we are met by a difficulty which is insuperable. Of the defendants, all of whom claim an interest in the land devised, one only takes an appeal. It is impossible to make a decree here affecting the interest of this appellant without affecting the interest of the other parties named defendants in the decree from which the appeal is taken, and it is absolutely essential that they, or at least some of them, should be before this court. As a matter of course the other parties cannot prevent this appellant from having here an adjudication of his rights, but as they cannot be determined without affecting the rights of others, they should be before the court. If he alone wishes to prosecute the appeal he must do it with proper notice to them and severance. 20 Wall. 158; 12 How. 327; 16 How. 142; 12 Pet. 140; 14 Wall. 402; 8 Pet. 526; 13 Fla. 596; 16 Fla. 498; 8 John. 558; 23 Wend. 621; 14 Ohio State, 287.

The appeal is dismissed.

At the same term, on April 8th, and after an order had been entered dismissing the appeal, the appellant entered a motion and filed the following petition to set aside the order of dismissal and to reinstate the case, and for leave to amend:

The petition of T. L. Whitlock by his counsel and solicitors, Pasco & Palmer and J. N. Stripling, respectfully sets forth the following matters in connection with the above-stated cause, with his prayer for relief:

That the record of the cause shows that Theodore H. Willard, as ex-officio administrator of Lewis D. Whitlock and Benjamin F. Whitlock, was the complainant in the court below, and that he was there represented by Angus Paterson, Esq.--this will appear by the bill and subsequent proceedings.

That Thomas L. Whitlock, William W. Whitlock, Amanda Thomas and her husband, L. A. M. Thomas, John H. Jones and others were defendants, having separate interests of different values, and some of them adverse to all the others; that Amanda Thomas and her husband were represented by J. B. Marshall and F. P. Paterson, Esquires, and John H. Jones and all the other infants and the husbands of the married infants were represented by C. W. Stevens, Esq., a solicitor of this court who was duly appointed guardian ad litem of the infant defendants; that Thomas L. Whitlock and William W. Whitlock were rep resented by Messrs. Pasco & Palmer, all of which will appear by the answers of the said parties, the order appointing the guardian ad litem, and other papers on file and upon the records of the cause.

That so far as the said Thomas L. Whitlock was affected by the decree fixing the interests of the several parties in the lands sought to be partitioned, he, as heir of the children of his late wife and himself, who died before their mother was found to have no interest in the said lands, and he was by the very circumstances of the case severed from his connection with the cause in that relation as heir of such children; that up to that time he and his son William were represented by the said counsel, although they filed separate answers, the son not contesting the father's claims and accepting the opinion of the said counsel as to the extent of his interest in the said lands. As soon as it was found that the court gave to the said William W. Whitlock a larger interest in the said lands than had been claimed for him by his counsel their interests were entirely severed, and the former counsel for both parties thereafter represented only the father, and Messrs. Marshall and F. P. Paterson thenceforward represented William W. Whitlock as well as the interests of Mr. and Mrs. Thomas, and he has so here acted, as the files and record of the court show.

That the other defendants refusing to appeal from the interlocutory order fixing the interests of the parties in the land, and excluding the said Thomas L. Whitlock from participation in the partition thereof as heir of his children, who died before their mother, the said Thomas L. Whitlock entered his appeal therein in writing on the 30th day of December last, having previously so done at the hearing, which appeal appears upon the record in this court.

That on the 12th day of January he gave all the said parties due notice of this appeal in writing, which notice all of the said parties accepted in lieu of a formal citation and summons, and waived the service of a writ, as will appear by the written acceptance of such notice upon said notice in the record, duly signed by the several counsel for the respective parties and by the guardian ad litem for the said infants.

That Angus Paterson, Esq., and J. B. Marshall, Esq., have appeared here according to the terms of said notice, argued the cause and filed their briefs herein, and the said guardian ad litem has had the opportunity so to do. The said Marshall has not only, on behalf of his clients, refused to join in the appeal, but has resisted the same in his argument.

And the petitioner suggests that if a summons and severance is or was necessary in this cause, that there has been action therein equivalent thereto, and if a formal severance is necessary that the same can be entered of record and the cause still be heard and determined upon its merits; that a dismissal of the appeal will be attended with great cost and expense, which he is ill able to bear, having already been put to much expense and a lengthy and burdensome litigation about the said lands, and he prays that the cause be reinstated as it stands upon the record, or upon such terms or with such amendments as the court may direct; and that this petition may be held and regarded as an amendment and addition to his petition of appeal so far as it brings to the attention of the court such matters as should have been stated therein.

Mr Justice WESTCOTT.

On the same day the court made an order reinstating the case on the docket, and Mr. Justice WESTCOTT at the same term, on the fourth day of May, delivered the following opinion on the petition:

This is a petition and motion to set aside the order dismissing the appeal to reinstate the case, and for leave to amend by adding proper parties in conformity to the record of the Circuit Court.

The practice in such cases as this in most of the States is to take out the appeal in the name of all the parties against whom the decree is rendered, and one party may take the appeal in the name of all his co-defendants without first obtaining their consent. If the other parties do not unite in the appeal, or in prosecuting the appeal, those prosecuting may have a summons and severance...