29 Fla. 285 | Fla. | 1892
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
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 ob
“ 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
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
. 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
“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 represen
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 fourth and fifth assignments of error are as follows :
" 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,
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.