Barnes v. Scott , 29 Fla. 285 ( 1892 )

Tayloe, J. :

When this cause was first brought to this court upon writ of error, William D. Barnes and Rhoda E. King, as surviving executors of Cullen Curl, deceased, were the plaintiffs in error, and Alice G-. King was the defendant in error; since that time it has been made to appear that both Rhoda E. King and Alice G. King have died, and that Andrew Scott, sheriff of Jackson county, has qualified- ex officio as administrator of said Alice Gf. King, deceased; and, by consent of all parties, the said Scott as administrator, takes the place of said Alice 0. King as a party to the suit here, the cause to proceed as though he were the original defendant in error, and the said William I). Barnes, as surviving executor, the sole plaintiff in error. On the 13th of March, 1885, the original defendant in error instituted her action in assumpsit in the Circuit Court of Jackson county, against William I). Barnes and Rhoda E. King, as executors of the last will of Cullen. Curl, deceased, upon a promissory note for $5,000, made by Cullen Curl, dated February 11th, 1880, payable one day after date.

To the declaration the defendants, as executors, pleaded :

1st. That it was not the testator’s note ;

2d. Want of consideration;

3d. Bar of the statute of limitation of five years;

4th. That defendants’ testator died on or about the' 21st of February, 1880, and plaintiff did not sue until after five years after the right of action accrued, and more than one year after the qualification of defendants as executors;

5th. Plene administrmit praeter.

On the motion of the plaintiff the court below required the defendants to elect between their first and second pleas above, and' this ruling is assigned as the first error.

It is contended for the defendant in error that this ruling cannot be assigned for error here and cannot be-considered by this court because no exception or objection was taken or noted to same in the court below. While the rule is well settled that exceptions must be taken and noted to all rulings of the court below that it is desired to have reviewed here when such rulings are made during the progress of a trial concerning matters in pain that are not and can never be a part of the record in the case unless made so by bill of exceptions duly made up and authenticated by the signature and seal of the judge presiding, yet this rule, upon a writ of error, does not apply to rulings that are apparent upon the face of the record, and that are, per force of their very nature, a part of the record itself; and that appear from a simple transcript of the papers and proceedings that compose the record proper of the cause without the help or addition of a bill of exceptions — such for instance as the rulings of the court upon demurrers to the different pleadings. When the matter submitted to the court for its decision and the ruling thereon is made to appear as a part of the legitimate record proceedings in the cause, leading up as steps to the formation of the issues therein, then 'as to such matters there is no necessity for any exception in order to have it reviewed here, because, in such cases a bare transcript of the papers filed iii the cause and that compose within themselves that which is the record of such cause, and the rulings of the court thereon, ■would upon their face exhibit the matter to be reviewed here without the aid of a bill of exceptions to make it appear. The distinction as to when it is and when it is riot necessary to' take ór nóte exceptions tó rulings upon which, a review is desired is thus very clearly put in Powell on Appellate Proceedings, p. 215. ,

“ The only object of a bill of exceptions is to bring inro the record, the facts and the decision of the court, where it would not otherwise appear therein. Sometimes when a matter transpires or a decision is casually made and its objectional character not readily perceived, the party is required to make his objection at the time in order to enable the matter to be corrected if it is chosen to be, for otherwise it may be presumed that the matter was assented to or waived. But where a question is directly raised to the court to respond to ]t, as upon a demurrer, or a motion found upon the matters in the record, which shows the matter and the decision of the court thereon, no bill of exceptions is necessary. And no objection is required to be made to the decision of the court, upon any matter directly submitted to the court for its decision, and that specially called for such decision ; for then it is not to be presumed that the decision was casually made, or that it might be corrected upon the objection being made. For where the facts already appear in the record, and the court, by a demurrer, or a proper motion founded thereon, is called upon for the proper decision or instruction, the court is bound to decide the question according to law, without any exception or objection being made to such decision ; for in such a case there is palpable error apparent on the record, in case the question is decided wrong. In such a case, to state on the record that the decision of the court was excepted, or objected to, is unnecessary, and it is impertinent, because it is as unnecessary as it is offensive.”

The ruling of the court under consideration belongs clearly to that class where, no exception was necessary to make it assignable as error or to have it reviewed here. The two pleas that were the subject matter involved in the ruling are a part of the record proper. The order or ruling of the court requiring the defendant to abandon one of them and elect upon which of the two he would rely is also a part of the record proper; and the subsequent written election between the two pleas filed by the defendant in obedience to such ruling became also a part of the pleadings and record in the cause. So that we have before us, appearing as part and parcel of the record proper, not only the subject matter propounded to the court for its decision, but the decision or ruling itself. No exception was necessary to be noted in order to have it reviewed here. We think the court erred in requiring the defendant to elect between his first and second pleas. While there may be some repugnancy between them, the plea of “want of consideration” to a suit on a note carrying with it an implied admission of the making of the note; yet there is no such inconsistency and repugnance between them as prohibited their being pleaded at the same time as a defense. If the note sued upon is not the act of the alleged maker but is .a forgery, it would follow as a corollary that such an instrument was devoid of consideration. While on the other hand though the defendants’ plea that it was not his note might be proven to be untrue, still it might be true, as stated in his second plea, that it was without consideration. The two pleas set up distinct and entirely independent defenses, both of which are legitimate and proper, and, either one of which, when established, would entirely defeat a recovery. - By this ruling the defendant was shut off from introducing proof to establish want of consideration, and was thereby deprived of a legitimate defense that he attempted to make, and that should have been made by him, occupying the representative capacity that he did, if the facts of such plea were true.

. For replication to the third and fourth pleas above, the plaintiff replied as follows: “ That the plaintiff’s right of action accrued on the cause of action in the declaration mentioned on the 15th day of February, 188.0, and afterwards, to-wit: on the 20th day of February, 1880, Cullen Curl, the defendants’ testator, died testate, and afterwards the said defendants duly qualified as the executors of the last will of said Cullen Curl, deceased ; and afterwards, and within' qne year from the qualification of said defendants as executors as aforesaid, and the issuing'of letters testamentary to said defendants, to-vtit: on the 9th day of July, A. D. 1880, the promissory note in the declaration mentioned was duly presented for payment, to the defendant; R. E. King, as executrix as aforesaid ; and afterwards, on the 13th of March, 1885, suit was instituted thereon.” To this replication the defendants'demurred, assigning as grounds of demhrrer:

“ 1st. That the .presentment of the claim.as,alleged •does not take tlie ease out of the statute of limitations ;

“2d. A presentment to one executor is not sufficient.”

This demurrer the court overruled, and this ruling is assigned as the second error.

It is contended for the defendant in error that this •assignment cannot be considered by this court, because no exception was taken or noted to the ruling of the •court below upon this demurrer. This court, in Jones, Varnum & Co. vs. Townsend’s Administratrix, 21 Fla., 431, has settled this contention by holding that under the provisions of Chapter 3430, Laws of Florida, approved March 5th, 1883, no exception need be taken or noted to the ruling of the lower court upon a demurrer, in order to have such ruling reviewed upon writ of •error or appeal. Of the correctness of that decision this court is fully satisfied.

Was there error in overruling this demurrer ? We think not. The replication alleges that within the same year that the cause of action first accrued, and within one year after the qualification of the defendants as executors of the deceased maker of the note ■sued upon, the same was presented by the plaintiff to •one of such executors for payment. Though no suit was brought to recover such note until March 13th, 1885, under the view of this court in Sanderson’s Administrators vs. Sanderson, 17 Fla., 850, and in Deans, Administrator, vs. Wilcoxon, 25 Fla., 980, we think the presentation of the claim for payment to the personal representative of the deceased debtor, when not denied or contested by him as being a good and valid claim against the estate, stopped the operation of the general statute of limitation and of non-claim, when made within the period of twelve months after the qualification of such personal representative. Without deciding whether such presentation, if made within two years after the giving of notice for presentation of claims, would likewise have this effect to stop the bar of the statute or not, the presentation of this claim for payment to the personal representative, within one year after his qualification, in the absence of any denial of its validity if such was the fact, had the same legal effect, so far as the bar of the general statute of limitation is concerned, as though suit had been instituted within that period. It wras further contended that such presentation, to have this effect, should have been made to all the executors, instead of to one of them only. This position is untenable. The general rule is, that notice to one executor is notice to all. McHardy vs. McHardy’s Executor, 7 Fla., 301. And upon the principle of this rule, we think the presentation of a claim to one executor is tantamount to a presentation to all of them.

At the term of the court at which this case was tried, the plaintiff was allowed to amend her praecipe, writ and declaration in the following particular : The defendants were sued simply as executors of the last will of Cullen Curl, deceased. By means of dilatory pleas it appeared that there had been another qualified executor, who had died prior to the institution of the suit. The defendants contended that they should be designated in the suit as “surviving” executors. Yielding to this contention, the plaintiff obtained leave of the court and amended her praecipe, writ and declaration so as to describe the defendants as “ surviving executors,” &c. By reason of this amendment the defendants claimed and applied for a continuance of the cause for that term, under the provisions of sec. 90, p. 834, McClellan’s Digest, that provides that the court, in its discretion, may give leave to any party to amend any pleading at anjT time before the case is submitted to a jury ; provided, the amendment be made instanter; and provided also, that if the amendment be in matter of substance, and not of form, the other party shall have the right to claim a continuance. This application for continuance was refused, and such refusal is assigned as the third error. We see no error in this ruling. The amendment made did not work any change in the issues as presented by the- pleadings, either pro or con ; did not necessitate any different or additional pleading on the part of the defendants, and did not necessitate the production of any other, different-, or further proofs than were called for by the pleadings as they stood before the amendment, and was simply and purely as to a mere matter of form that could have no possible effect upon the substance of the issues between the parties as then made up by the pleadings.

The fourth and fifth assignments of error are as follows :

“4th. The court erred in entering judgment upon the verdict of the jury finding no assets in the hands of the defendants.”

" 5th. The judgment of the court varies from the verdict of the jury.”

These two assignments are predicated upon the verdict of the jury upon the plea, plene administravit prcuter, interposed by the defendants — the verdict being as follows : “We, the jury, find for the plaintiff, and assess her damage at five thousand five hundred ana twenty-five dollars and thirty-three cents, and that defendants have not sufficient assets in their hands to satify the just debts of Cullen Curl, deceased.” Upon this verdict, after a correction in its amount made by consent of all parties, judgment was entered in the usual form in favor of the plaintiff, and against the defendants, as surviving executors, without any notice being taken in the judgment of the special finding of the jury as to the non-possession of assets by the defendants, as such executors. Under the common law, when an executor or administrator had no assets to satisfy the debt, upon which an action was brought against him, he had to plead plene administravit, where, he had no assets at all; or plene administravit prceter, where he had some assets, but not enough to satisfy the claim; otherwise his failure to so plead had the effect of an admission upon his part that he had sufficient assets to satisfy the judgment when recovered ; and the judgment, in the absence of such plea, was conclusive upon him as to possession of assets, and in default of assets to respond thereto, he and his sureties became personally liable for such judgment. But this rule has been abrogated by our statutes, (secs. 68, 69 and 70, p. 96, McClellan’s Digest,) that provide, that no security for any executor or administrator shall be charged beyond the assets of the testator or intestate, by reason of any omission or mistake in pleading, or for false pleading of shell executor or administrator; .and that where judgment is recovered against an executor or administrator in his representative capacity, .and return is made that sufficient assets have not been found in his hands to satisfy such judgment, the judgment creditor may immediately commence and prosecute, in the name of the Governor, his action for the recovery of such judgment, or such part thereof as may remain unpaid, against such executor or administrator and his sureties, or either of them; in which action, however, the defendants can shield themselves with any plea or pleas, and can support them with any evidence that would be legally admissible in any action against executors or administrator, suggesting a devastavit. The effect of this legislation is to excerpt the question of the possession or non-possession of assets by the executor or administrator, as an issue, out of suits brought by creditors simply to reduce their claims to judgments ; that issue, by this legislation, being postponed to another suit on the judgment recovered, in which the issue of assets or no assets is directly and chiefly made. The failure of the executor or administrator to plead plene administravit, or plene administravit prater, in the suit brought primarily to reduce the creditor’s claim to judgment, does not, under this legislation, have the effect of rendering the judgment, when recovered, conclusive upon him as to his possession of assets sufficient to satisfy the same. Except, therefore, in suits brought directly to test the existence of assets and the consequent liability of the executor or administrator, we think that the office and effect of these pleas has, by this legislation, become nugatory in this State, and no longer a legitimate defense in suits brought to reduce creditor’s claims to judgment. State for use of Garrett vs. Crawford, 23 Fla., 289, 2 South. Rep., 371 ; Judy vs. Kelly, 11 Ill., 211. This being true, the pleas interposed herein, of plene culministramt pr ester, was nugatory, and the special findings of the jury thereon was likewise inoperative, was properly- treated as immaterial surplusage, and there was no error in the entry of judgment in the usual form, as was done, without any notice being taken of the special finding on the plea as to assets.

Because of the error in requiring the defendant to-elect between his first and second pleas and thereby depriving him of a legitimate defense, the judgment-of the court below is reversed and a new trial is ordered.