Mary Corlett, as Executrix under the Last Will and Testament of John B. Corlett, deceased, Plaintiff in Error, vs. George W. Oliver, Defendant in Error, 107 Fla. 403

Per Curiam. This was a suit at law for the recovery of an amount alleged to be due George "W. Oliver, plaintiff below, for services rendered as attorney for one John B. Corlett, deceased, in connection with the defense of an injunction suit pending in Polk County, wherein H. E. Fairchilds and others, were complainants, and John B. Corlett, J. W. Carson and Crooked Lake Florida Farms Company, a corporation, were defendants.

The jury returned a verdict for plaintiff in the sum óf $943.92 and from the judgment entered consequent thereon, this writ of error was taken by the defendant below, as representative of the estate of John B. Corlett. The evidence showed that the defense of the injunction suit in. which Corlett, Carson and Crooked Lake Florida Farms Company were defendants, was a joint undertaking, and that the defendants consulted and retained Oliver as their attorney under such circumstances that their liability for the payment of Oliver’s attorney’s fee became a joint obligation of John B. Corlett, J. W.

Carson, and Crooked Lake Florida Farms Company. See 6 R. C. L. 878. Afterward, John B. Corlett died and Mary Corlett, the plaintiff in error, and defendant below, became his executrix.

The controlling point that must be determined by us on this appeal, is whether or not, assuming the joint contractual obligation of Corlett, Carson and Crooked Lake Florida Farms Company to pay Oliver’s attorney’s fee, because they had become jointly liable on an implied promise to pay a reasonable fee to the attorney for the services rendered by him in their joint undertaking to defend, Oliver, the obligee may maintain an action against the executrix of Corlett, deceased, to recover the amount of the fee?

At common law it was a settled doctrine that in case of joint obligations, if one of the joint obligors died before the obligation was discharged, the representative was in law discharged, and the surviving obligors alone could be sued. Lee vs. Puleston, 102 Fla. 1079, 137 Sou. Rep. 709. Except as changed or modified by the provisions of the constitution and laws of Florida, the common law is still in force in this state.

Section 87 C. G. L. 71 R. G. S. But in Brill vs. Jewett, 262 Fed. 935, it was held by the Circuit Court of Appeals for this Federal Circuit, that

Section 4211 C. G. L., 2571 R. G. S., had abrogated the common law rule that the death of one joint obligor discharges his representative and leaves the surviving obligor or obligors alone liable, and in Lee vs. Puleston, supra, we expressly adopted and approved the construction thus placed upon our statute by the Circuit Court of Appeals for the Fifth Circuit. The intention of the statute in providing for the survival of all actions except those enumerated was to prevent their enforceability being destroyed by the death of a party, as was the case at common law.

The statute therefore had the effect of abrogating the common law rule as to the effect of the death of a party in cases of joint contractual liability, such as we have in the case now being considered by us. We therefore have a situation created by the statute, under which the liability of the deceased joint obligor is preserved from being extinguished by his death, as was the case at common law, but which nevertheless cannot be enforced in a single suit brought against the survivor and the personal representative of his deceased co-oblig- or, jointly.

Such is the effect of the ruling made by this Court in Lee vs. Puleston, 137 Sou. Rep. 709, supra, where it was expressly held that a suit on a joint note could not be maintained jointly against the surviving joint obligors and the legal representative of the deceased joint obligor, because the one is to be charged de bonis testators, the other de bonis propriis, forms of judgment that the rules of common law governing the law courts are not flexible enough to permit to be included in the same judgment.

The solution for the procedural complication thus presented, is to permit the joint liability of a deceased joint obligor to be reduced to judgment in a separate suit brought against the personal representative of the deceased joint obligor, for the purpose of adjudicating the fact and the amount of such liability as has survived under the statute, against such deceased, but to stay execution or enforcement of any judgment so rendered until the asserted joint liability is also reduced to judgment against the surviving joint obligor or obligors, unless it be shown that such surviving joint obligors are beyond the reach of process, or incapable of being sued because of their bankruptcy, death or other cause which would preclude suit against such survivors.

The foregoing rule is in line with the procedure followed by the Federal Court in Brill vs. Jewett, where recovery was allowed to stand against the representative of one of two joint obligors on a note, upon a showing in that case that the other (surviving) obligor had subsequently died, leaving no one in existence subject to being sued as a surviving joint obligor, inasmuch as there had been no appointment of a personal representative of the subsequently deceased survivor, at the time the suit was brought against the representative of the obligor who had first died.

The judgment appealed from should be affirmed with leave to have such further proceedings as may be in accord with the foregoing rule, with reference to the other surviving joint obligors. Affirmed, with leave for further proceedings in accordance with this opinion. Buford, C.J., and Whitfield, Terrell and Davis, J.J., concur. Ellis, J., concurs specially.