Anderson v. E. W. Agnew & Co.

Liddon, J., {after stating the facts). In the argument upon the assignment of error predicated upon the overruling of the plea of the statute of non claim no question is raised as to the manner in which the ruling was made. Without reference to the procedure, the plaintiff in error contends that upon the record and the evidence in the case the judgment upon this plea should have been for the defendant. We consider the case as presented. Although the plea in question was overruled before the trial was had upom the other pleas, the defendant offered, without objection, his evidence to sustain such plea. Considering the proof of publication of the notice to all persons having claims against the estate of the deceased to have been duly made as alleged in the plea, the question arises whether the proceedings taken in the case against Rogers, as executor, within the time limited by the statute for the presentment of claims was equivalent to a presentation of the demand sued upon, or dispensed with the necessity of such presentation. In considering such question the transcript being filed be — 35 — fore the adoption of special rule No. 3 of Circuit Courts adopted Sept. 16th, 1895, we do not consider as of any validity the recital of the clerk that the defendant appeared by his attorney in the case. It is well-settled by many decisions of this court that a voluntary entry by a party defendant or his authorized attorney of a general appearance in a cause, or the doing •of any act fully equivalent to such entry of a general appearance, cures all defects in the service of the writ, and is legally conclusive that such party had notice of the demand sued upon, and gives the court jurisdiction of his person. But such entry of appearance, or its equivalent act, is a matter that should appear affirmatively and distinctly from the record. Where the defendant has not been legally served with process, or has filed no plea, or taken any other step to defend the suit, a mere recitation by a clerk in a transcript of record upon a writ of error that he entered an appearance by some unnamed attorney, is not sufficient to ■show that he actually appeared in the case. Barker vs. Shepard, 42 Miss. 277, and other Mississippi cases cited in text, pages 282 et seq.; Crary vs. Barber, 1 Colo. 172; Kimball vs. Merrick, 20 Ark. 12. Therefore, if the effect of the statute of non claim is avoided by the proceedings taken against Rogers, as executor, it must either appear that a legal notice or writ issued ■against him in the case, and was served upon him, or that such issuing and service were unnecessary. The •suggestion of the death of the defendant, filed, to make said Rogers, as executor, a party was in strict compliance with Circuit Court Common Law Rule 36, and with the statute then in force (sec. 75, p. 830 McClellan’s Digest; sec. 45, Chap. 1096 laws of Florida, acts «of 1861). The plaintiff did all that was incumbent — 36 — upon him, and the proper writ or notice should have been issued by the clerk. We do not think it necessary to determine whether a notice in due and legal form was properly issued and served. Under the rule-established by this court the action taken by the plaintiffs to revive the suit against Rogers, as executor of the deceased defendant being taken within the time-limited by law for the presentation of claims is equivalent to and dispenses with an actual presentation of' the claim. In Ellison vs. Allen, 8 Fla. 206, the defendant died after service of process. The statute (act of 1838, sec. 3, p. 332 Thompson’s Digest) then in force required that upon the death of a party defendant to a suit the plaintiff might sue out a scire facias requiring the executor or administrator of the defendant to appear and answer the cause. Said scire facias was to be served in the same manner pointed out by statute for the service of other process. After the death of the defendant, but before the expiration of the time limited by statute for the presentation of' claims to the administrator, the plaintiff asked for and obtained an order for a scire facias to make such administrator a party defendant in the suit. The administrator seems to have lived, and administration to have been granted, in a county other than that where-the suit was pending. ISTo scire facias was issued upon the order. The court held that the obtaining of' the order for the scire facias was equivalent to and dispensed with the actual presentation of the claim.. In the body of the opinion the reasons are stated upon which the court rested its conclusions, which are unnecessary to be repeated here. The suggestion filed, in the case under consideration, and the notice issued in pursuance thereof, were under the provisions of a. — 37 — later statute, and were substitutes for the former proceedings by scire facias. They were substantially the same character of proceedings; the difference between them being more nominal than real. It was as much the duty of the clerk to issue the proper notice under the suggestion filed by the plaintiffs as it was his duty under the old law to issue the scire facias upon the order of the court therefor. The rule applied in Ellison vs. Allen, supra, is properly applicable to this case. In Bush vs. Adams, 22 Fla. 177, this court held that the facts of the case did not come within the principle of Ellison vs. Allen, but in the opinion it is stated to be a duty to apply the principle to cases falling within it, although the doctrine announced is as liberal as the terms and policy of the statute will sustain. ' The reasons are stronger in this case than in Ellison vs. Allen why the proceedings taken to make the executor, Rogers, a party should be held equivalent to a presentation of the claim, or sufficient to dispense with such presentation. In that case no scire ..facias issued at all, and there is nothing to show that the administrator had within the time limited by the statute of non claim any knowledge or notice whatever ■■■of the suit. In this case the notice 'actually issued as provided by statute, and while these may perhaps not have been in perfect legal form, and legal service of it -may not have been made, there was a notice actually issued in fact, and notice and knowledge of the suit as .a matter of fact brought home to the executor. It is also contended that upon the evidence sub•mitted upon the plea of not guilty the judgment should have been for the defendant. Among other matters wherein it is claimed that the plaintiffs failed to sustain their case it is argued that the plaintiffs did not — 38 — show a sufficient title to the property which they charged the defendant with converting to his own use, and that the title to the land from which the sticks of cedar in controversy were taken was not in the name of the plaintiffs’ firm, but stood in the name of one of the plaintiffs individually, and another person. Unfortunately for this contention there is no plea in the case which presents any issue as to plaintiffs’ title. The plea of not guilty raises no issue as to the plaintiffs’ property in the goods alleged to have been taken- and converted by the defendant. It only operates as a denial that the defendant committed the wrong alleged, i. e., that he took and converted the goods to his own use. Circuit Court Common Law Rule 75;. Stewart vs. Mills, 18 Fla. 57. Under the plea of not guilty, the general issue in trover, the defendant can not prove the property or right of possession of the-chattels in question to be in some other than the plaintiff. Robinson vs. Hartridge, 13 Fla. 501, text 508 et seq. It is contended that the findings of the referee were not supported by the testimony, because such testimony, fails to show a taking and conversion of the-property by A. E. Hodges. It would serve no useful purpose to sum up or analyze the testimony, and we-do not do so. We deem it sufficient to say that while it was not so full, complete and satisfactory as it might have been, yet it was sufficient to authorize the referee to find for the plaintiff. It is also contended that the plaintiffs should not have maintained their suit because they made no proof of a demand before suit was brought. The record does show proof of demand made upon Joel Hodges, the-agent of the deceased defendant A. E. Hodges. It. — 39 — was not necessary, however, to have proven such demand. The proof of the conversion being complete, no proof of demand before suit was necessary. The purpose in an action of trover of proving a demand and refusal is to show a conversion of the property, and it is wholly unnecessary to prove a demand where the conversion is otherwise shown. Robinson vs. Hartridge, 13 Fla. 501, text 515; 26 Am. & Eng. Ency. of Law, 728. The judgment of the Circuit Court is affirmed.