6 Fla. 314 | Fla. | 1855
delivered the opinion of the Court.
William D. Branch instituted an action of replevin in the Circuit Court of Marion County, to recover a certain stock of cattle. He states in his affidavit that “ he is Administrator of the Estate of Samuel E. Swilley, deceased, and that as such Administrator, he is lawfully entitled to the possession of a certain stock of cattle now in possession of Littleberry Branch, numbering about eighteen hundred,” describing them and saying further “ that the said cattle have not been taken for any tax assessment, or fine levied by virtue of any law of this State, or seized under any execution or attachment against the goods and chattels of this deponent, liable to excution.” He also executed a bond in the penal sum of twenty thousand dollars to the said Littleberry Branch, with J. M. McIntosh and A. D. Johnson as his sureties, conditioned “ that whereas the above bounden Wm. D. Branch hath this day commenced an action of replevin against Littleberry Branch for the recovery of certain cattle, more particularly described in an affidavit filed herewith. Now if the said W. D. Branch shall prosecute the said action to effect and without delay, and if the said Littleberry Branch should recover judgment against him in said action, shall return the said cattle, if return thereby should be adjudged, and shall pay the said Littleberry Branch all such sums of money as he may recover against him in the said action, for any cause whatsoever, then the above alligation is to be null and void, ortherwise, to be in full force and virtue.” This bond was approved by the Clerk of said Court, the said affidavit and bond were filed in the office of the Clerk of the same Court, on the 20th of October, 1852, and both of them as well as the writ of re
The plaintiff filed his declaration December 1st., 1853, in the usual form, describing himself William D. Branch plaintiff in this suit, Administrator, &c., &c., and concluded by saying, wherefore the said plaintiff Administrator as afaresaid, saith that he is injured, and hath sustained damage to the amount of twenty thousand dollars, and therefore, die., die.
The next entry upon the record was made on the 7th of December, 1853, and is as follows, to-wit: “Now on this day came the parties, by their respective Attorneys, and this cause coming on to be heard, the defendants counsel moved the Court to quash the writ and declaration for a variance between the precipe, writ and declaration; and, also, moved the Court to dismiss the suit for want of a sufficient affidavit and bond, and because a pluries writ had been issued in said cause before declaration filed ;. whereupon the Court having heard the argument of counsel, and having considered the matter, overrules the motion to quash said writ and declaration, but sustains the defendant’s motion to dismiss said suit for want of a sufficient affidavit and bond, and therefore, it is ordered by the Court that the
On the 6th. day of December, 1854, the defendant, by his counsel, J. P. Sanderson and S. St. Geo. Rogers-, presented to the Marion Circuit Court, the mandate of this Court in this case, and moved to vacate the judgment heretofore entered in this cause, which was done -accordingly, and thereupon came the parties, by their respective attorneys, and a jury was empanelled to assess the said damages, who assessed the same at two hundred and seventy-five dollars, upon which verdict judgment was duly entered, and a return of the cattle aforesaid was awarded ; and thereupon, the plaintiff again prayed an appeal to this Court.
At the December term, 1853, the defendant’s counsel moved the Court for leave to amend the record of this cause entered at the last Spring term of this Court, wherever said ■record shows that Rodgers, defendant’s counsel, consented to the order therein entered, granting to plaintiff’s counsel leave to issue a pluries writ, and further time for filing of
Two bills of exception appear in the record, but as they were not noticed in the argument of the case, we do not deem it necessary further to advert to them. Ten errors were assigned, all, however, but the first two and the last, were abandoned at the hearing. The three relied upon are as follows:
First. That the Court erred in entertaining the motion í o dismiss the proceedings, and quash the said writ of replevin at the third term after the commencment of said suit, an appearance having been heretofore by the said defendant, entered at a previous Court, to wit: at the first term to which the same defendant was summoned.
Second. That the Court erred in deciding that the bond and affidavit filed in the above entitled cause, were insufficient, even not in conformity tolaw, and thereby dismissing the proceedingsin the same, and quashing the writ of replevin.
Tenth. That the Court erred in allowing defendant’s motion to amend the record in said case.
The case has been ably and ingeniously argued on both sides. It is contended on behalf of the appellant, that the proceedings are regular and correct throughout,- that the
For the appellee it is insisted that the suit was improperly commenced; that the precipe has no venue, that the affidavit does not conform to the requirements of the statute ; that the jurat is defective ; that the suit is at the instance of the administrator of the estate of Samuel E. Swilley, deceased, and that there is no bond given binding the estate; that the bond is not entitled as belonging to
As to the alleged defect in the precipe, if such an objection could be heard at all, it comes too late. Applications to set aside proceedings for mere irregularity, should be made as early as possible. 3 Chitty’s General Pr., 511 to 529. If not, it will be waived. 1 Tidd’s Pr., 9, 165, 190, 403, 435. So as'to the affidavit, that the jurat is defective, and as to the writ, that it does not run “in the name of the State of Florida.” The appearance of the defendant was entered at the first term after the service of summons upon him, and no motion was made to quash any of the proceedings for any cause, until the third term. Nor does it appear that any of these objections were taken at all in the Court below. As to the style of the process ; the Constitution, article fifth, Section fifteen, Thomp. Dig., p. 325, No. 3, declares that the style of all process shall be “ the State of Florida.” The style of this process is “the State of Florida.” This we think sufficient. The Constitution of Iowa, requires criminal proceedings to be conducted in the name of the State of Iowa, and it has been there held, that aprosecution in the nameofthe “State
Many of the objections taken by the plaintiff’s counsel in this case, seem to be founded upon the idea, that this is a suit prosecuted by William D. Branch, as administrator, &c., of Samuel E. Swilley, deceased. - That however, is a wrong view of the matter. He prosecutes it in his own individual character. It is true, that in his affidavit, he, in order to show his right to the possession of the cattle in controversy, says, he is entitled to the possession of them, as administrator of Samuel E. Swilley, deceased, and in his declaration, he alleges that they belonged to, and were owned by Samuel E. Swilley, deceased, in his life time, and at the time of his death, “and that they were in possession of the said plaintiff, administrator as aforesaid, of Samuel E. Swilley, deceased,” and in all the proceedings, except the affidavit, he either designates himself as William D. Branch, or as William D. Branch administrator ; the latter is mere decriptio persones. He had a right to sue in his individual capacity. Mr. Williams in his able work on Executors, vol. l,page 627, (side,) says, upon the death of the testator or intestate, if an injury is afterwards done to his goods and chattels, the executor or administrator may bring an action for damages for the loss; and under the circumstances, he has his option either to sue in his representative capacity, and declare as executor or administrator, or to bring the action in his own name, and in his individual character ; and Carlisle vs. Beesley, 3 Greenleaf’s Reports, 257; Patcher vs. Wilson, 4. Hill, N. Y., 57-8 B. Monroe’s Reports, 521 ; Hollis, et al. Administrator, vs. Smith, 10 East. Reports, 293, and Ballane and
In 2 Williams on Executor’s, side pages 1150 and 1151, it is said that the same declaration which contains counts on promises to the testator, may contain a count on an account stated with the plaintiff as executor, concerning money due to the testator from the defendant, or concerning money due to the plaintiff as executor, or a count for money lent by the plaintiff as executor, or a count for money had and received by the defendant to the use of the plaintiff as executor, or a count for money paid to the use of df’t by the plaintiff as executor. So in a declaration in debt, a count on a judgment recovered by the plaintiff as executor, may be joined with counts on debts which have accrued to the testator. But (he says) it must be stated in the count, that the duty accrued to the plaintiff in his representative capacity of executor. It is not enough to say it accrued to him ‘executor’or being ‘executor,’ it must be averred that it accrued to him as executor. And in Needham vs. Croke, Freeman’s Reports, 728, it is said: “ if an executor states an account with a debtor, he may, ifhe pleaseth, afterwards sue in his own name for this debt, for the stating of the amount raiseth a new debt.
It is well settled however, that bonds of this kind, will in general be sustained as voluntary bonds good at common law, unless the Statute has expressly declared them void, or they have been obtained by fraud or by coercion or oppression colore officii. Nothing of this description has been alleged or pretended in regard to the bond under consideration.
It was insisted that the Court has no authority to grant a pluries writ, that there was no declaration filed and the cause stands dismissed by the rules of the Court, and Thompson’s Digest p. 457, Sec. 6 and page 387, Sec. 3 are cited to sustain the proposition. This objection is founded upon this provision of the Statute above cited at p. 389, Sec. 3, of our replevin Law viz: “ If the goods and chattels specified in the writ of replevin be not delivered to the plaintiff, and the defendant shall have been duly summoned, the plaintiff may either sue out an alias writ, or proceed by filing a declaration in trover or trespass, and thereby abandon his action of replevin.” The writ in this Case was returned not executed &c., and the plaintiff caused an alias to be issued which was also ineffectual, and he
Upon the whole, our view of this matter is, that the plaintiff had a right to declare in his representative character as administrator, or in his own individual char - acter. It seems that he adopted the latter course; that the. affidavit and bond are substantially good, that whatever irregularity may have existed in them, are cured by the objections to them not having been taken in due time that is as the books say, in the first instance; that therefore the first two errors assigned are not well taken, and consequently the last becomes immaterial.
Let the judgment and order of dismissal of the Court below be reversed with costs, and the case be remanded to that Court, and be there reinstated, that such proceedings,