State Ex Rel. First Trust & Savings Bank v. SoutherlandState Ex Rel. First Trust & Savings Bank v. Southerland
*1 Corpora- a Incorporated, Distributors, Southern Fruit L. tion, vs. J. Appellant, C. Carlton, Ella Souther- Helm, Appellees. and land Luther 882.
142 So. Division July 8, 1932. filed Decision Appellant; Yerger, Arthur C. for Appellees. Whitehurst, W. W. for been sub- having heretofore Curiam.—This cause Per record of the transcript to the Court mitted for the argument counsel herein, and briefs and decree respective parties, having and the record been in- seen’and spected, being the Court its judgment and now advised of premises, it given to be seems to the Court that there decree; therefore, considered, no is, the said adjudged by and the Court that ordered said decree of hereby be, Circuit Court and the same is affirmed. Buford, C.J., Ellis, Brown Whitfield, Terrell, J.J., Davis, concur. ex rel. First Florida, Bank, Trust & State Error, Corporation, vs. J. Julien Florida A. B. Civil Small, Southerland, Florida, for County, of Record Dade Court Defendants Err or. 883. En Banc. July Opinion filed rehearing September 21, denied Petition *2 Merslwn, Mershon, Robinson, Evans <& M. L. and L. L. Attorneys for Plaintiff in Error.
SMpp, Attorneys <&Kline, for Evans Defendant Error. banking Error, Commissioner. Plaintiff ina
Andrews, corporation Florida, suggestion under the laws of filed its County the Circuit Court of rule Dade obtained a why to show prohibition 'a writ of not to should issue enjoin Judge the of the Civil Court Record of said County entertaining proceedings against from the further upon said Bank in capacity,” plaintiff’s its “individual amended declaration filed-in a which until then had pending been in said civil court record said Bank “as the one Parker executor estate of A. Hender son, deceased.” Defendants in Error filed de their petition (suggestion) hearing murrer to the and at the thereon the of the Court Circuit entered an order demurrer; judgment sustaining thereupon, final was said discharging entered nisi which the rule had theretofore plaintiff. final issued the From such writ of was taken. Error,
It seems that the-Defendant J. Julien Suther- land, had suit in Civil Court of for instituted the Record County against & the First Dade Trust Bank deceased; estate Executor the of Parker Henderson upon was that a summons issued to 'and served said representative Executor, its and that appearance its as Executor of the Bank entered said estate. alleges That in such suit amended declaration employed said of said estate the Plaintiff Bank as Executor mortgage agreed pay the to foreclose a certain might services such de- for his fee as Court reasonable, termine to be reimburse for monies foreclosure; advanced in bill connection with said particulars attached to such declaration stated amended an indebtedness to Plaintiff from Bank as Executor said estate; said pleas that after the Bank had filed general issue, it decla- tendered a demurrer to the amended ground alleged liability ration did appear estate, to be one a motion said and filed file serving leave to said demurrer Plaintiff with up notice that the motion and demurrer would be called *3 hearing; in that at the time mentioned the notice the appeared and asked Court to amend leave of the 'by the from striking amended declaration out the title and caption of said cause the words “as Executor the Estate of ’’ deceased, by striking of Parker from A. Henderson the “in official said amended declaration the words its of as Executor of Estate Parker Hender- the ’’ deceased, proceed son so that suit would as amended said & as against the First Trust Bank Defendants. interposed thereupon Executor its written ob- The Bank as jection proposed judg- amendment moved for a to the upon upon grounds, its demurrer to the ment declaration the proposed others, amendment amounted to among of the action, the cause institution a dismissal of said separate against without a new Defendant of a new in a process such new Defendant manner service of the by prevailed if it would result provided law which only out of the assets the judgment satisfied as it individually, declaration stoo'd Bank whereas the judgment out only to be satisfied result could Civil Court Judge of the said estate. The of the said assets overruling de- hearing an order entered at said Record “so said amendment objections and allowed fendant’s & First Trust against the Defendant to make the suit corpora- corporation, Savings Bank a Defendant Executor; ordered said tion or before on plead amended declaration demur to the was issued prohibition specified. Writ of a date therein upon this order. the Circuit Court based alleges said (suggestion) further that petition The ipso' former action amendment terminated facto estate, and of said as executor the sole defendant therein juris- without its were said Court of Record and therein of a introduction to revive the diction separate cause action. a new new answer Defendant to Court, Circuit amended, upon order of the petition was The (Bank) has allegation Petitioner by adding to' the cause, appeared in process nor said with never been served individually. pro- in Error to the writ of Defendants demurrer of
The it is from Circuit Court and was hibition sustained this Court was taken to that writ for review. here question presented for determination principal action, law plaintiff this common not the
is whether or for services Bank as such Executor instituted bymay testator, after the rendered the estate death individually place the Executor amendment substitute *4 Executor. of such individual as of Record com- that if the Civil Court It is also observed file the amend- permitting the Plaintiff error in mitted thereby 1931, making the Bank de- 21, on December ment Executor,” where the individually, instead of “as fendant July attorney 10, 1928, fees was dated o'f action for thereupon would be barred claim that the said limitations. of statute al., 90 McCaskill et Fla. al.
In Brickell et v. the case of 470, was held that an executor should 441, 106 So. it capacity contracts made on in his
sued individual the estate attorney, of an rendered payment for services deceased, of request such after the death of executor 107 chargeable properly if the same was a that matter by the to executor estate the amount should be allowed cases probate of See court in the settlement his account. Kelly 139 v. Odom authorities there cited as follows: 410, 33 61 Ark. C., 278, 953; N. 51 E. Tucker v. Grace S. 374; 11 530; Hay (Mass.) 5 66 Am. 403, S. W. Am. Dec. Eng. Ency. (2nd Ed.) of Law brought in the originally In the instant case the suit was as executor for civil court of record the Bank death of testator. services rendered the estate after the 92 Bank, Epstein In & Bros. v. Nat. the case of I. First entirely 354, “if new 796, Fla. it was stated that an entirely parties amendment, is or different case made operate as a plaintiff defendant, or it would discon made original L., C. tinuance of the suit.” See also R. In connection it is observed that Section See. Florida, 1920, (4208 of G. Statutes Revised General striking names 1927), G. authorizes the out of the L., any improperly joined trial, at time before defendants appears injustice “if not be the trial will even at by such done amendment.” Epstein approved fol-
In case this court the above applicable here, lowing principle law, which seems namely: declaration, in an action “"When the summons and running limitations, brought o'f statute before running of the statute limita- after the are amended individually, the defendant is sued tion so to show that representative capacity, the amendment merely party defendant, but bring a new
does not changes which the same defendant charged, can- sought and therefore the defendant to be by the statute of the action is barred contend that ’’ limitation. from one quoted principle of law is taken The above Boyd namely: subject, v. United leading cases on *5 999, 262, 187 N. Y. 79 N. E. Mortgage Co., & Trust State 108 Rep.. 10 Ann. S.) 599, 116 Cas. (N. 399, A. Am. St. L. R. 483, 167 139 Minn. v. Robinson also McCormick See Dandy 262, 197 Ala. W., 271. Plunket v.
N. See 28 L. 884, Craft, 146, 166 Ala. 525; Shriner v. So. 21 C. Rep. 19. also R. S.) 139 Am. See (N. 450, St. R. 825-826, 134; 24 C. J. sec. 584-585, L. Sec. changes in char- generally agree that authorities charged per- are capacity in a is or which defendant
acter same, of action remains the long as the cause missible so may representative capacity be in a one and a individual, a suit changed charge him as an so as to' may changed capacity so in an individual one capacity. gen- representative it is charge So' him in or ad- erally sued as executor held that “if a defendant is may charge pleading be amended ministrator 472; 244-245, 47 C. J. sec. personally vice versa.” See and many 2070, cases there cited. 825-826, sec. and 24 C. J. having the Circuit Court been committed No error permit- of record in sustaining civil court the order the declaration so suit would -ting plaintiff to amend in its individual the defendant stand executor, judgment of the circuit court is hereby affirmed. having been con The recordin this
Pee Curiam. foregoing opinion prepared Court, and sidered adopted by the Court Chapter 14553, Acts of under adjudged considered, opinion, ordered as its be, Court below and the the Court hereby, same is affirmed. Ellis, Davis, Terrell
Buford, C.J., Whitfield, J.J., concur.
Brown, J.J., dissents.