Robinson v. Epping, Bellas & Co.

Mr. Justice Raney delivered the opinion of the court: I. Pursuing the order of argument adopted by the counsel for appellant we consider first the ruling sustaining the demurrer to the 4th plea. This case is an action of debt by appellees upon a bond made September 22, 1877, by Hirschfelder as principal, and appellant and another as sureties. The condition of — 250 — the bond is set out in totidem verbis in the declaration, end is that “ whereas in an action brought in the Circuit Court of Escambia count, Florida, sitting in chancery, by the above bounden Y. S. Hirschfelder, against the said Epping, Bellas & Barrs, late copartners as aforesaid, to enjoin a suit at law brought by the said Epping, Bellas & Barrs, as late copartners in the said Circuit Court, and for an account and general relief, wherein a decree by consent is entered of date--, A. D. 1877, for an account, and for a dismissal of said suit at law, and said decree is to take effect upon the tiling of this bond, conditioned that the said Hirschfelder shall pay to the said Epping, Bellas & Barrs, as late copartners, such sum as may bo found to be due to said respondents, from said Hirschfelder, upon the final determination and decree in the case; now if the said Hirschfelder shall well and truly pay to the said Epping, Bellas & Barrs such sum as may be found to be due them upon the final decree and determination of said case, then this obligation to be void, else to remain in full force and virtue.” The declaration sets up the execution of this bond, the subsequent death of Hirschfelder, pending the, chancery suit, and the appointment of Tate on or about April 15th, 1882, by the County Court of Escambia county, as the administrator of his estate, and the'revival of the suit in chancery by making such administrator a party and the rendition of a decree on the 16th day of December, of the same year, to the effect that according to the report of the master therein, Hirschfelder was, in his lifetime, on the first day of July, 1876, indebted to respondents in a sum which, with interest thereon, to the filing of the report, amounted to $1,045.58, and that the administrator pay the same out of the assets of the estate, if any, now or hereafter in the hands of said administrator to be administered. — 251 — The substance of fourth plea is accurately given in the statement. It is true that by the terms of the bond, as appears upon its face, the decree for an account and for the-dismissal of the suit at law was to take effect upon the filing of the bond, and therefore it may be said that the-bond was made “ in view ” of an alleged consent decree for a dismissal of the suit at law, but it is clear that there is nothing in the bond that makes the actual dismissal of the action at law a condition to the liability of the appellant for any decree that should be obtained against ITirschfelder in the chancery proceeding. Admitting, as contended by counsel for appellant, that the object of the agreement,, as to dismissal, was to give the claim on which the law proceeding of appellees was founded a status and protection in the chancery cause, we are nevertheless satisfied that if the standing upon the docket or the omission toactualN dismiss, the former action, was ever available as a reason why appellees should not have relief for their claim iu the chancery proceeding, it, like any other defence of Ilirsehfelder, or his legal representative, to such claim,, should have been asserted in the chancery cause. If ever a good plea it was one in abatement and of the nature of a plea of the pendency of a former suit and can not be availed of as against this action on the decree rendered in the-second or chancery cause. The surety is concluded by the-decree as to any matter of defence of which Ilirsehfelder or Ids lawful representative might have availed himself in-such suit. He cannot in the action now before us question the correctness of the decree. Slovell vs. Banks, 10 Wall., 583. II. The sixth plea is, in substance, as shown by the-statement that Tate’s appointment as administrator of Hirschfelder was made upon citation issued without any — 252 — petition or complaint in writing as a basis therefor, and that such a petition was jurisdictionaL to the issue of the citation, and to a grant of letters of administration thereon. This plea is based upon the statute of August 4th, 1868, (chapter 1627, sections 9, 10 and 11, p. 826, McC.’s Digest,) and what is said of it in the former opinion in this case, Epping, Bellas & Co. vs. Robinson, 21 Fla., 36. This act, says the opinion referred to, ‘‘ provides the method of bringing matters before the court for its action, to-wit, by-petition in writing, and the facts stated in the petition are the grounds of its judgment. Petit’s Admr. vs. Petit, 32 Ala., 305; Hay’s Admrx. vs. McNealy, 16 Fla., 409. When the County Court acts upon the petition and grants the letters, the facts alleged are adjudicated upon and its judgment upon these facts is conclusive, except in a direct proceeding to reverse, set aside or annul the order or judgment of the court. And when the record makes an averment with reference to a jurisdictional fact, it will be understood to speak the truth on that point, and it will not be presumed that there was no other or different evidence respecting the fact. Galpin vs. Page, 18 Wall., 366.” It is contended by appellants that the law of this case, as established by the former opinion, is that a petition is necessary and jurisdictional to the action of the County Court in the appointment of an administrator. Though under the view we take of this case, as shown by a subsequent paragraph, this record of the County Court shows a sufficient compliance with the requirement of the statute mentioned as to a petition, to meet a collateral attack, still we are not satisfied that the opinion supports the contention advanced. There is nothing in the extract quoted above that so declares, or that goes farther than to say that the procedure prescribed by that statute is the — 253 — proper and regular one. Of course where there is a petition and it fails to show jurisdiction, and the record does not otherwise show it, the want of jurisdiction is apparent upon the record. Where, however, the record considered as a whole, does show jurisdiction, a failure to comply with the provisions of the statute of 1868 would be only an irregularity of precedure and the subject of correction by direct proceeding. The doctrine of the above extract that the statements of the petition are the grounds of the court’s judgment, is advanced upon the assumption that the record of the Probate Cour , when seen, would disclose a case in which the procedure deemed proper by the court had been followed,, but there is nothing in it that discusses the effect of the absence of a petition in case the record should otherwise show jurisdiction, or that declares a petition indispensable. The general doctrine of the opinion is that it is sufficient if the jurisdiction appears somewhere upon the record. We must say, however, that we do not wish to be understood as concurring in the view that the procedure provisions of the act of 1868 apply to the matter of the appointment of an administrator ; although it be that, as to the case before us we are constrained to state that the opinion does declare that such act furnishes the measure of proper though not indispensable procedure. III. The third plea having been abandoned, we are brought to a consideration of the trial upon the issues joined upon the 1st, 2d and 5th pleas. The gravamen of the controversy under the first plea is, that Ilirschfelder, who was a resident of Alabama, and died out of the limits of the State of Florida, was not, at the time of his death, possessed of any goods, chattels or — 254 — lands in any county in this State, and that this fact appears upon the face of and by the record of the County Court of Escambia, and that consequently the appointment of Tate as administrator (which appointment is averred to have been procured by plaintiffs without authority from the representatives of Hirsohfelder, qualified under the laws of Alabama,) was an act without authority of law, or without jurisdiction in said County Court. The gravamen of the second plea is that Hirsohfelder died out of the State, uendiug the chancery suit, and not only was at the time of his death not possessed of any goods, chattels or lands in Escambia county, but also there were not any debts due to him from any persons or person living in such county, for the collection of which neither Tate nor any other person produced or had legal authority from the representatives of Hirschfelder to be appointed administrator; and that it appears by the record of the County Court that facts necessary to confer jurisdiction upon it to appoint an administrator — that is to say, the contrary of these allegations — were not presented to and adjudicated by such County Court in granting administration to Tate. The parts of the above pleas that aver the want of authority from representatives of Hirschfelder, qualified by law in the State of Alabama, to procure administration here, have been disposed of for the purposes of this case adversely to appellant by the former opinion, and are beyond our consideration. The substance of the 5th plea is that the County Court had no jurisdiction to grant the letters, because Hirschfelder was a citizen and resident of Alabama, and died there, and it does not appear by the records of such court that the citation required by law was duly published and posted, — 255 — or that Hirschfelder had assets in said county of Escambia upon which the County Court could grant letters of administration. We will dispose of the question of the publication of the citation and thou consider the other features of the pleas together. The statute (sec. 5, p. 78, McC’s. Digest,) provides that if neither the husband or wife, nor other person entitled to distribution, apply for administration, or if one applying cannot comply with the provisions of the act, then, “ after citation duly published for the term of six weeks, once a week, in some newspaper printed in the district or jurisdiction where the intestate died, if any be printed there, if not in some newspaper printed in the adjoining district or State, and also by writing, posted at three public places in the county, then the said judge may grant administration to a creditor of the intestate or some fit person.” The requirement of this clause is that the publication of the citation shall be made in two ways, viz: in a newspaper and by posting. The order of the County Court, granting letters of administration to Tate, appearing in the transcript of the record of the proceedings of that.court, as read in 'evidence, recites that: “ citation having been published for six weeks, as required by law.” This is a distinct adjudication by the County Court that the publication was made for the period of six weeks in the manner required by law. It is not simply an adjudication of a publication for six weeks, but of a publication for such period according to law, or in the two modes of publication prescribed. We cannot on this proceeding inquire as to whether the evidence of such publication justified the conclusion reached, but it is unquestionable that it was the duty and within the jurisdiction of hat tribunal to ascertain whether the citation was duly — 256 — published, and that the question was presented to it and decided by it in the affirmative, and that the fact of such presentation and decision is shown by its records. It is pot necessary that its records should recite the modes of publication as detailed in the statute; the language used must be held to judicially ascertain and declare a compliance with them, which is sufficient to show jurisdiction. Gunn vs. Howell, 27 Ala., 676. The statute does not require that the citation shall mention the name of a particular individual as the “ creditor ” or other “fit person” whom it is intended to appoint administrator. We fail to see anything in its provisions indicating an intention upon the part of the Legislature that the terms of the citation, or the publication of the same, shall limit the power or discretion of the court, when it comes to the appointment, to the consideration of only one individual as fit for the trust. The purpose of the citation and its publication is to lay the foundation for going outside the favored class of husband, wife or other persons entitled to distribution for an administrator, and not to fix the right as between persons not belonging to the favored class. The latter construction would, in case of the failure of the particular party named in the citation to qualify, not only render a new citation and the publication thereof necessary, but introduces into the statute a requirement not sustained by its terms. The defence made by this feature of the plea is not sustained and we pass to the other features of the three pleas. If it appears from the record of the County Court that Hirschfelder was not at the time of his death possessed of any goods, chattels or lands in any county in this State, the first plea is sustained ; and if it be that at the time of his — 257 — death Hirsehfelder did not have such property in Escambia county, and the fact that be did have such property was not presented to and adjudicated upon by the County Court in granting the letters of administration to Tate, and this absence of presentation and adjudication appears upon> such court’s record, the second plea is made out. Such seems to be the accepted law of this case. The record entry or order of April 15th, 1882, made by County Judge Shackleford, and mentioned above as adjudg-ing the publication of the citation, states that “ letters of administration have this day been issued to Walter Tate, he having given bond under oath and otherwise qualified according to law.” The letters of administration also bear-date of April 15th, 1882, as appears by the copy of the same in such transcript, and they recite the fact of Tate’s having given the administration bond “ and having duly qualified according to law.” The affidavit appears to have been sworn to “ this the 13th day of-, A. D. 1882,” before Shackleford as County Judge. The statute (McC’s. Dig., Sec. 7, p. 78,) provides that previous to granting letters of administration, the court shall require the person applying for the same to state upon oath or affirmation, to the best of his knowledge and belief, whether there be any heirs or legal representatives of the intestate in being or not, and whether according to the best of his knowledge and belief, the deceased died without &, will, and to make the usual administrator’s oath (or affirmation) as prescribed. It is provided by law (See. 13, p. 988,) all letter of administration shall be recorded in the -office of the County Court. The record entry or order of April 15th and the record of the letters of administration, are the record evidence i» this case of the affirmative determination of the court upon — 258 — the question of granting administration to Tate. The only qualification other than giving the bond, that he was required by law to make, before the actual grant of letters, fras the oaths or affirmation referred to, and these are what is meant by the words “having otherwise qualified according to law ” and having “ duly qualified according to law” in the order and record of the letters. As there is an affidavit on file making the averments required by law, it must be held that it was there when such entry or order was made, and when such letters of administration were signed and issued; and an affidavit, in which these oaths are (unbodied and which on its face appears to have been made in connection with the administration in question, appearing on the files of the court, such affidavit and order and letters naturally connect themselves with each other. No other conclusion than that the affidavit was on file when the order was made and the letters signed, recorded and issued, is, in this case, where there is nothing to suggest the contrary, tenable. The record of the County Court showing then, as it does, that the affidavit in question was on file when the County Judge granted letters of administration, and this affidavit containing, as it does, the averment that the deceased died leaving an estate in Escambia county, consisting of an unliquidated claim, the amount of which the deponent and applicant for administration,.Tate, deposed -he was unable to state, the jurisdiction of the court is thereby made apparent upon its record. This averment was, it is true, not required by the statute, Sec. 7, p. 78, MeO’s. Digest, as a feature of the oaths referred to above, yet it cannot, on that account, be presumed to have not been put in for a practical purpose. The ouly practical purpose it could have been put in for was to make — 259 — the jurisdiction apparent upon the record. This it does and for this purpose it must be presumed it was intended. The fact that a court is not one of general jurisdiction according to the course of the common law does not deprive it of the benefit of the presumption that acts which sub-serve but one particular purpose were done for such purpose. Assuming that the meaning of the former opinion in this case is that a “ petition,” or “ complaint by petition,” under the act of 1868 (Secs. 10, 11, p. 326, McC’s Digest,) is a jurisdictional paper, we think this affidavit, containing the several averments that it does, is a sufficient petition as against an attack by a collateral proceeding. Its purpose was to present to the court the facts it alleges ; it was presented to the court to induce its action- and the court having acted affirmatively upon it has thereby adjudged it to be sufficient both in form and substance, and being sufficient in substance to make the court’s jurisdiction or right to decide upon the case appear upon its records, the correctness of its ruling upon the question of fortn cannot be raised here any more than can that of the sufficiency of the proof of the averments. Admitting that the usual administrator’s oath need not be made nor the bond given before the entry of an order that letters of administration shall issue, still neither such an order nor the law contemplates the actual issue of the letters before such oath and bond have been filed, but the law does contemplate that the oaths as to heirs and the absence of a will shall be made before such an order for letters to issue is entered, and the fact clearly is that in this case the oaths last referred to, and the administrator’s oath and the bond, were all made and filed before there was any order for letters to issue or final adjudication of administration. — 260 — The fact that the record does not affirmatively show that the question of assets had beén presented or considered before the issue or publication of the citation, is immaterial. Such publication, wherever it is proper, is a preliminary to the adjudication of a grant of administration, and the question of assets is an essential to such an adjudication, but it is sufficient if the record shows upon its face, and even at such a late stage of the proceedings as the order for letters to issue or final adjudication of administration, that the question was presented and adjudicated affirmatively. Though the question of assets should naturally be inquired into to a certain extent at least, before the issuance of the citation, yet it is not actually adjudicated until the determination to grant the letters becomes final, and if the record shows that it was considered at any time before such final adjudication, or in even making the same, it is in a proceeding of the kind before us sufficient even though it should be a fact that the consideration of such question had been expressly omitted at the time of issuing the citation. Our conclusion is that it does not appear from the record of the County Court that Tlirsehfelder was not at the time of his death possessed of goods, chattels or lands in any county in this State, but that it does appear from such record that the fact that he did have such propert}'- in Escambia county was presented to and adjudicated upon affirmatively by such County Court in granting the letters of administration to Tate. In view of the above conclusion, it is unnecessai’y for us to express our opinion as to the admissibility of t he parol testimony of Shackleford and Tate, for if there was error in admitting it, such error is without injury to appellant, — 261 — in view of the above conclusion as to the effect of the record of the County Court. It is urged that the record before us shows that the “ unliquidated claim” of the intestate, mentioned in the proceedings of the County Court, is the claim involved in the chancery suit instituted by Hirschfelder in his lifetime against Epping, Bellas & Co. for injunction and account, the final result of which suit was a decree against Hirschfelder’s administrator, for the satisfaction of which the action at bar was brought. This claim, counsel for appellant contends, is not such a chose in action as was held in the former opinion to be in the nature of goods to authorize an administration, and the adverse result of the chancery suit to Hirschfelder’s representative is called to our attention in support of their contention. The opinion referred to holds that the term “goods,” in the administration statute, includes choses in action, notes, bills and other evidences of debt. (p. 52.) The record of the chancery suit is not before ns, nor are we informed as to what is the character of the claim made by the bill filed in it by Hirschfelder, further than that it was a bill to enjoin a suit at law, instituted by appellees, and to call them to an aoeouut. Assuming that such a bill is the unliquidated claim referred to in the administration proceedings, we are clear that it is within the deeis-ion. The bill must have claimed a balance to be due to Hirschfelder on an accounting by appellees, and having been filed by Hirschfelder in his lifetime, its-stacus asa chose in action has the sanction of the intestate’s resort to equity for its recovery. The fact that the suit resulted as it did after h'is death does not affect the adjudication of the County Court as to its existence as a chose in action or defeat the jurisdiction of such court. — 262 — We do not mean by anything advanced in the preceding-paragraph to hold that the sufficiency of the proof before the County Court of Hirschfelder having died leaving an estate in Escambia county, consisting of an unliquidated claim, and that this unliquidated claim was of such a character as to support the jurisdictional allegation, can bo questioned in this or any collateral proceeding. IV. The only remaining question to be considered is that of appellant’s liability upon the bond for the costs in the chancery suit. The appellees bad instituted an action at law against Hirschfelder. Hirschfelder filed a bill in equity to enjoin the prosecution of such action and for an account and general relief against appellees. The condition of the bond in question is for the payment to Epping, Bellas & Go. of such sum as may be found to be due them from Hirschfelder upon the final determination and decree in such chancery suit. A surety does not undertake to do more than is expressed in his obligation, and he has the right to stand upon the strict terms of the same as to his liability thereon. It is not to be implied that he has undertaken more than is within the precise terms of his undertaking. Brandt on Suretyship and Guaranty, sec. 79; Raney vs. Baron, 1st Fla., 327. The meaning- of the undertaking in this case, we think to be the sum of the indebtedness which might be found to be due by Hirschfelder upon final accounting, as ascertained by the decree. To extend the liability of the surety beyond the matter of the indebtedness claimed by Epping, Bellas & Co. to be due them by Hirschfelder upon an accounting, and the amount of such indebtedness as it should be fixed by the final decree, and include in such liability the feature of the costs of the equity suit, is to enlarge the liability by implication to something not — 263 — covered by the strict terms of the engagement, and to go beyond the language of the terms and the meaning of the obligation. The amount of these costs is definitely fixed by the testimony of both witnesses at $211; and the error in allowing their recovery under the bond in nowise affects the-balance of the recovery in the judgment appealed from, and, as a consequence, the practice adopted in McLean vs. Spratt, 20 Fla., 515, 524, is appropriate, and should be adopted here. The judgment of this court is that the judgment of the Circuit Court be reversed, and a new trial granted, unless the appellees (plaintiffs below), or their attorneys, within thirty days after the filing of the man-, date of this court in the office of the Clerk of the Circuit Court, shall file with the- Clerk of said Circuit Court a remittitur as of the date of said judgment for the said sum of $211, and upon the filing of the same the said judgment will stand for the balance of said recovery as the judgment of said Circuit Court, to be enforced according to law. If such remittitur shall not be entered, as aforesaid, the judgment will, upon the expiration of said thirty days, be held to be vacated and set aside and a new trial awarded. The costs of. this appeal will be taxed against the appellees.