*1 accepted paid plaintiff. for Alleged defects developed construction later which on the instant predicated. action is plaintiff recover, if entitled to
Even declaration negative dwelling sufficiently does not the fact that the with plans constructed accordance specifications. properly sus- was therefore demurrer tained. joined by and next
Anna C. her husband Courtright, Ap H. friend, F. H. Courtright F. Courtright, liquidator of pellants, W. vs. H. Tunnicliffe, Orlando, Company & State Bank of Orlando Trust Appellee. Florida,
Davis, Commissioner.—T'he Orange County complaint Court of Circuit requiring appellee to allow purpose appellee for the impress certain appellants, and to a claim of preference of Or- State Bank a trust. with in his hands funds *2 lando and Company Trust open to failed on August 5, 1929, year and the for filing pursuant claims to Section 18 Chapter 13576, Acts expired September 28th, appears September It that 20, 1929, on complain- ants filed with the receiver against bank a claim said bank; year complainant that said F. H. Court- right, defendant, related the to the and assertеd facts rights preference; August their 18, 1931, to a that on complainants, through attorneys by their demanded against letter that classify pay defendant their claim preferred said bank as a claim, which demand was re- jected on August, the 19th of 1931, and at the same time complainants by were informed defendаnt that the claim accepted would be under the common creditors classification; prior that filing bill of com- dividend, plaint paid had been out of the assets bank, said and that the fund and assets liable for the payment preferred against claims said bank were they been since the same аnd situation as had condition filing Receiver; the time of appointment of a that at by filled was made out and original claim, same by the Re- agent provided form upon of the Receiver covering specifically upon no item ceiver which there was preferred complainants through claim and that inad- ignorance vertence and other form of claim filed, their could or need be believed that in the manner and form aforesaid was sufficient claim rights preferred to a claim. protect their bill, and from a demurrer to the The Court sustained by for review this Court. is here that order thе cause orally be argued briefs question briefly may be stated case by the Court this answered as follows: year bank, after the insolvent of an for May a creditor against such bank filing claims law
provided preferred any dividends elapsed, and before has claim as paid, amend claims have been his duly creditor, been filed in a common which upon a blank writing under form furnished oath liquidator receiver, and demand and enforce as a preferred the same claim? 1 of Chapter 7935,
Section Laws of Florida amend- Florida, 1929, 18, Chapter ed Section Laws of reads as follows: every nature “That all kind and placed Company Bank that has or Trust State liquidator properly sworn
in the hands of a to and filed with the year must be *3 liquidator within thereof one qualification liqui- from of the date the company, thereof of hank or no dator claims not so filed within the trust and from twelve months the qualification date of liquidator the the thereof of shall by liquidator he included Comptroller the the distribution of the assets.” This Court has declared it to he policy the our law prompt to favor a expeditious handling of the and affairs delay insolvent banks because in final settlement of its affairs “is fatal creditors to the interests of both stockholders”. Amos vs. Cоnkling, 99 Myers v. Atlanta, Federal Reserve Bank of 407, So. Myers vs. Atlanta,
In Reserve Bank supra, Federal of an hank creditor insolvent a common as creditor his liquidator subsequently, claim and filed with permitted statutory was his period, amend the same amend- preference, as proof so as to assert Uрon appeal Court allowed the Court. ed said: Justice Mr. Davis through speaking here filing form particular requires “The statute of the claimant. choice leaving olaims, filing prompt- his claim option also claimant has last the last minute of the hour ly waiting or of until doing so. ‘‘ consequence delаying filing his principal paid are that, event dividends" Ms expires, he would before the time for as are de- participate such dividends be entitled to through his clared while his claim remains unfiled delay. voluntary may
“And, inasmuch as a claimant wait until the preferred last minute to file a claim when he has never аll, appears prin- filed claim at that on a like ciple may he at the last amend his once minute filed preference, common creditor claim so even to assert a though originally he filed it as a claim without preference. “But an amendment so made would take effect mаking from the date it. The acts the receiver liquidator prior to the date of the amendment could not be affected the fact of the amendment. duty “It is the of claimants defunct banks promptly claims, file their both common prefer- ential. While permits the statute a full year to do so without cоmpletely barring it does not follow liquidator that the bank must year wait until that completely expired paying before available dividends to those claimants who promptly have filed their claim and who have their claims on file when the re- liquidator ceiver or to comptroller authorized ****** pay a dividend out of the bank’s assets. *4 the merely filing, more, without a claim, common does preclude not its amendment statutory within the period, so as to make it preference.” assert (Italics a supplied). point While the involved in this case was not raised in case, that important for the Court to determine when an amendment that converts a common claim into preferred a effect, takes and the Court said it would take effect of making from it, the date and that the mere of a common claim “does not preclude its amendment within the so preference”. as to make it If claim so assert a a amend- preferred until the ed does not take effect as a claim making it or leave amendment has been made 724 applied for, then no error was committed
Court sustaining in to the bill. demurrer
In the appellants instant case did not seek change form proof changing without nature char- аcter of the claim. particular proof
No form of being required by the Statute, change a the form of of a common claim not being if matter, allowed, a material would do appellants violence to the Statute. Here the seek show that the relation and bank was not as between them creditor, debtor bailor or and common but as bailee and que after About eleven months trustee cestui trust. what asked for expired proving they time had they amounts to a withdrawal of the claim which filed as sought a creditor common to substitute therefor a showing them to be beneficiariеs of a trust fund. Bryan (Mallett Tunnicliffe, 238); 137 vs. So. Co., 481; vs. Bk. 101 Fla. Coconut G. & Tr. So. 956, 124 3 R. C. L. Lewis, Edwards vs. So. position 522, 558). appellant’s to shift their It desire general depositor claiming from that their distribu tive share assets of the bank to that of special de positor claiming ownership specific of a special fund. allowed, If the аmendment should be appellants would ownership fund, of a claim the certain their abandon position bank, making common thus creditors as entirely original different from that made issue trying same cause of They up claim. to set are action, and action, speak, so to but a different causе we do not think that it can be done. no, appellee appellants makes contention that are asserting preference they
estopped because from claim with the filed their receiver. common creditors Myers vs. Fed. Bk., has indicated R. Indeed, this Court *5 there can be circumstances supra, under such had not drawn di- remedy claimant of' where the election rights, or than vidends asserted other mere and received dividends which his could have been received as a common creditor. annotation, also 68 A. L. R. 460. See grounded upon Sec- was The order of the Court below ap- 1929, 13576, Florida, 18, Chapter Laws of tion for affirmance. solely upon that Statute pellee relies occupied not unlike that position appellee to claims relation in an executor administrator This Court by him. being administered against an estate against the estate of clаims presentment discussing the said: person has deceased of a any particular not be need presentation “The executor or give notice to to
form, but sufficient
demand,
.debt
the existence
administrator
with
.him
amount, as would enable
its character and
reasonable
payment.”
сertainty
for its
provide
to
106;
vs.
Laverty,
3 Fla.
Sanderson
Fillyau vs.
Sanderson,
17 Fla.
190),
(text
the Court
Adams,
In Bush vs. said: present to “A failure his lifetime the decedent accruing against
a claim
those claims
payment
its
to
merely postpone
does
operates
virtually destroyed it and
presented, but
pro
estate.
action
claim,
stitute in the mere
tanto to the
upon
*
*
[*]
advantage of
part
policy
the creditor
the beneficiaries of the
legislature
preserve
requires
his
a sub-
want of such action does not find
though actual,
knowledge,
executor in
case.”
administrator or
Fillyau
Laverty,
106;
See аlso
vs.
Sanderson vs.
Sanderson,
Allen,
Ellison vs.
The Statute of nonclaim that now force is more claims, requirements stringent in its the decision than it when a decedent’s estate was provisions rendered, and the the Bush-Adams case *6 726
of said 18 Chapter Section Florida, Laws of stringent, are but any, little less if than said non-clаim statute.
Reasoning by analogy,
Court,
doubt,
the
in
had
under
mind former decisions
the statute
non-claim
Myers
quoted
opinion
in
in
language
when
the
the
it used
so
Atlanta, supra,
that
Bank of
vs. Federal Reserve
inference,
least, that
at
clearly
unavoidable
indicates
is to
purpose
if its
will not be allowed
an amendment
preferred claim
to a
pro'of
the
a common
convert
sought
the
it is
liquidation, unless
against a
in
bank
In
bank.
against such
proving claims
we
here
consideration
question
the
under
settlement
that
principle from
in
different
do not see
the law is
that
to a
an amendment
governs
application
which
an
run,
limitation
when
declaration after the statute of
set
a different cause of ac-
original
up
declaration
amendment.
proposed
tion
stated in the
from that
La Floridienne
is
in
principle
we
stated
that
refer
186, as
follows:
Co.,
L. R.
vs. A.
etc.
C.
count
or a new
is amended
declaration
“Where a
in dif-
mere restatement
is a
thereto, which
is added
action
same cause
form of the
ferent
count
added
amendment
originally pleaded,
so far
of the action
beginning
has relation to the
But, when
of limitations.
the statute
it is affected
pleading
amended
actiоn
forth
a cause of
a
that
set
new, different,
litigation is
from
pending
distinct
is
originally
up,
set
there
no relation
back.
equivalent
bringing
pleading
new
action,
new cause of action to
the
new
the statute of limitations runs
time
into
introduced
pleading.
courts,
Under the statutes and liberal rules
of
pleadings
amendments
defects and errors in
are
liberally
purpose
allowed ‘for the
determining
existing
question
suit the real
in controversy be-
parties.’ And,
tween the
when the
brings
amendment
*7
arising
general
out
‘the same
trans
matter
of
new
departure
occurrences, may not be a
or
action
allowing
pleading.
statute and rules
But the
amend
such
give
ments do not
amendments the benefit of the
legal fiction of
beginning
relation back to the
action,
deprive
right
as to
a defendant of
so
a
to the
bar of a
that
time
of
general
statute
limitations. The
rule is
to pleadings,
regard
amendments
without
stage
or
the
they
of
cause which
at
were intro
duced, have
to
relation
the commencement
suit,
the
or
the
time when the
plead
matter could
been
have
originally.
ed
deprive party against
imputed,
But relation is not
if it would
a
whom the amendment is made
right.
of
plaint
substantial
If an
amendment
a com
сlaim,
introduces new
matter
a new
as to
which the statute of
perfected
limitations has
bar,
the bar
lation
cannot be
legal
avoided
the
fiction
re
referring the amendment to the commence
ment of the
Bank,
suit. Steiner
387,
v.
Ala.
22
115
32;
South.
Nelson v.
Bank,
First Nat.
578,
139 Ala.
36
707,
South.
Ala.
101 Am.
Rep. 52;
v. Lemle,
St.
Morh
69
57
180; City
City
Hart,
684,
Kansas
60 Kan.
v.
Pac.
Flanders v. Cobb,
277,
88
34
488,
Me.
Atl.
and Livingston vs. Malener, So.
Appellants contend with much force that cases arising under the Bankrupt Act wherein creditors were allowed to amend claims expiration after of the time allowed for proving analogous them are the case at bar a number of Federal cases have been cited them. There can be no doubt that the Federal Courts have been liberal to the permitting extreme in proof amendments claims bankrupt estate, but a search the eases will show that where amendments have been allowed the usually claims were as amendment, same after before may new But not different or claims. whatever be practice permitting proof amendments of of claims Bankrupt Act, judgment our under the it is legislature, in fixing a time limit proving for against a bank liquidation, did not intend that a “special” depositor beyond should have time the stat- utory period proving specific a claim fund, to a after having, as a common creditor filed his claim for the amount of such gave fund. The claim as filed notice demand, “existence debt its character and upon amount” and such it was classified as they common claim. If allowed to amend their wish, amendment, aрpellants, guise would under the of an be enabled to make a after making never before expired, it had which had *8 injury made them. The fact that no would result anyo'ne justify searching meaning does not us in for a that would extend the time for claims when the language respect plain in that the Statute and un- ambiguous meaning and its clear and unmistakable. from it is here-
Finding appealed in the order error pro- further affirmed, is remanded for and the cause ceedings with law. accordance having con in this case —The record Per Curiam. pre opinion, foregoing and the sidered the Court adopted Sess., Ex pared Chapter 14553, Acts under and considered, ordered opinion, by the Court as its be the Court the decree by the Court that decreed is, hereby affirmed, the cause is be, low and the same in accordance with proceedings for further remanded law.
Buford, C.J., and' Ellis, Terrell, Brown Whitfield, Davis, J.J., concur. husband, Ap Nye, her Nye, M. Gordon Elizabeth Appellee. Stanley M. pellants, vs. Clawson, 886. B. Division April filed Decision