Henry S. Higgins, Appellant, vs. John S. Driggs as Administrator of the Estate of John S. Adams, Deceased, Appellee, 21 Fla. 103

Walker, Judge of the Second Circuit, (sitting in place of the Chief-Justice, disqualified,) delivered the opinion of the court: In Duval Circuit Court on January 2, 1882, the plaintiff filed his prascipe entitled as follows : “ Henry S. Higgins vs. J. S. Driggs, Administrator of Estate of J. S. Adams.” On the same day plaintiff filed his declaration, and with it a copy of his cause of action in the words and figures following: “ Jacksonville, May 8,1877. “ $1,097. Eor value received I promise to pay Henry ■S.

Higgins or his order, on demand, one thousand and ninety-seven dollars, at the rate of ten (10) per cent, per •annum. (Signed) “Ellen F. Adams, “Executrix of the Estate of J. S. Adams.” At March Rules, 1882, judgment by default was entered, no plea, answer or demurrer having been filed, and on the same day a final judgment was entered, the only proof filed with the clerk being the original of the promissory note filed with the declaration; The judgment is in the following words; “ It is ordered •and adjudged that the plaintiff have and recover of and from the defendant as administrator of John S.

Adams, deceased, fourteen hundred and seven dollars 21-100, besides his costs in this behalf expended, now taxed at $8.45.” On 10th April, 1882, the clerk issued upon this judgment an execution, of which the following is a copy: “The State oe Florida, “County of Duval. “ To all and every Sheriff of the State of Florida, Greeting: “You are hereby commanded that of the goods and chattels, lands and tenements of John S. Driggs as administrator of the estate of John 8.

Adams, deceased, you cause to be made the sum of fourteen hundred and seven dollars and twenty-one cents, which, lately, on the 1st day of March, 1880, in our Circuit Court of Duval county, of the State of Florida, held at the court-house in Jacksonville, in and for the county of Duval, was recovered against him by Henry S. Higgins for damages, with legal interest thereon until paid, together with three dollars and forty-five cents for his costs by him in and about said suit in that behalf expended, whereof the said John S.

Driggs administrator as aforesaid is convicted as appears to us of record, and that you have the same before the Judge of our said court at the court-house in Jacksonville, aforesaid, when satisfied, to satisfy the said Henry S. Higgins-damages, interest and costs. aforesaid, and have then and there this writ. “Witness, the Hon. J. M. Baker, Judge, as also T.E. Buck-man, Clerk, and the seal of said court, at the court-house, at-Jacksonville, aforesaid, the 10th day of April, 1882. [seal.] “T. E.

Buckman, Clerk.” On December 15th, 1882, plaintiff moved the court to amend the judgment “ so as to have it read and appear of record as against the goods and chattels, lands and tenements of John S. Adams, deceased.” This motion was refused by the court and the plaintiff-excepted. On 18th December, 1882, the defendant filed a petition to suspend the execution. On January 5th, 1884, the court ordered a final suspenr sion of the execution. To this ruling the plaintiff excepted. The case was then brought by writ of error to the Supreme Court. The questions for this court now to decide are— 1st. Whether-the Circuit.

Court erred in refusing to amend the judgment. 2d. Whether the Circuit Court erred in suspending the execution. In considering the question whether the Judge below ought or ought not to have amended the judgment, let us consider what sort of judgment, if any, the clerk ought to have entered on the praecipe, summons, declaration and proof before him. The praecipe, summons and declaration were all against “ Driggs, administrator of the estate of John S. Adams,” and it would follow that upon proper proof■ the judgment should have been entered against John.S. Driggs as administrator of the estate of John S.

Adams “ to be levied of the goods and chattels, lands and tenements of said-John S. Adams in the hands of said Driggs as administrator, to be administered.” 19 Florida, 695, Cooper, Executor of Roberts vs. Livingston. But did the proof, filed in this cause, authorize the clerk to enter up a judgment to be binding on the estate of Adams ?

If the proof authorized the clerk to enter such a judgment, then he ought to have done so, and if there was an informality in the judgment which the clerk ought to have entered, the court ought, on motion, to have amended it, (15 Fla., 198,) but if on the proof the clerk ought not to have entered a judgment binding on the estate of Adams, then the court below ought not to have done that which the clerk ought not to have done. A court should never lend its aid in perfecting an error which the clerk started to commit.

The court will only lend its aid when the clerk has started to enter a correct, judgment and has committed an informality in the entry. The question recurs, would the clerk have done right, on the proof before him, in entering a judgment against the estate of John S. Adams. The only proof before the clerk was a note signed “ Ellen F. Adams, executrix of the estate of John S. Adams.” Our rule of court, number 4, requires every promissory note sued on to be filed with the declaration.

The original of the note filed with the declaration in this case was the only proof or paper which was produced and filed when the judgment was rendered. Our statute,

chapter 1938, sec. 7, declares that upon the entry of a default, in any suit for the recovery of money, founded upon contract, and the action is on a written instrument for the payment of money, the plaintiff, at any time after such default, may, on the production and filing of such instrument, cause final judgment to be entered for the amount thereof.

We take it that this language relates only to cases in which the suit is founded on a contract between the parties to the suit or the persons they represent, and where the action is on a written instrument for the payment of money by the defendant, or the person he represents, to the plaintiff or the person he represents. If this be not the meaning of said

section 7, then A. may sue B. on the note of 0., and on default cause the clerk to enter judgment against B. The note sued on this case was not signed by J. S. Adams, nor by Driggs, the defendant. This is a note signed by “ Ellen F. Adams, executrix of the estate of J. S. Adams,” by which she, for value received, promised to pay Higgins or order on demand $1,097, at the rate of ten per ■ cent, per annum. Did this note bind the estate of J. 8. Adams ? or was it .the note only of Ellen F. Adams individually?

It does not appear, except from the note itself, whether the consideration of it was an indebtedness of J. 8. Adams to Higgins, or an indebtedness of' Ellen E. Adams individually. She says in the note “ for value received, I promise to pay,” &c. She may have borrowed money from Higgins for her individual uses and have given this note for it. The inference from the face of the note is that she received the value, and for the value so received gave the note. "We are of opinion that this note does not bind the estate of J. S. Adams. Mr. Daniel, in his work on negotiable instruments,

section 292, declares the law to be as follows: “ An administrator or executor cannot bind the decedent’s estate by any negotiable instrument. If he make, accept or endorse any negotiable instrument, he will bind himself personally, even if he adds to his own name the designation of his office as personal representative. Thus, if he signs himself “A. B., executor, (or administrator) of 0., or A. B. as executor of C., the representative terms will be rejected as surplus-age.” Mr. Daniel cites a great number of authorities to sustain the law as thus laid down, and we hold that he has laid the law down correctly.

Therefore, since Ellen P. Adams, executrix of J. S. Adams, by signing the aforesaid note, even though she added after her name the words “ executrix of the estate of J. S. Adams,” did not bind the estate of John S. Adams, and since Driggs did not sign the note, it was wrong for the clerk, on such proof, to enter a judgment binding either Driggs personally or the estate of J. S. Adams. And if the clerk should not have entered any judgment at all on such proof, either against Driggs personally or against the estate of J. S.

Adams, surely the Circuit Judge did not err in.refusing to amend the judgment so as to make it binding on the estate of J. S. Adams, as asked for by the plaintiff. Eor, as we have before said, the court should never lend its aid to perfect an error which the clerk started to commit but did not complete. It will only lend its aid when the clerk has started to enter a correct judgmant but has committed an informality in the entry. We are of opinion that the Circuit Court did not err in refusing to amend the judgment. The remaining question is whether the Circuit Court erred in staying the execution.

Every writ purporting to be an execution ought to be suspended on application to the court, unless it shows clearly on its face out of whose property it is to be satisfied, for it is not proper to leave the sheriff in doubt on that subject, as it is unlawful for him to levy on the property of any one except by the express command of the law. This execution commands the sheriff to satisfy it, not out of the property of Adams in the hands of Driggs to be administered, but out of the property of Driggs as administrator of Adams.

If it was the intention of the clerk who issued this execution that it should be satisfied out of the property of Adams, why did he not issue it in the common form which has been in use for ages, “to be levied of the goods and chattels, lands and tenements of Adams in the hands of Driggs to be administered ?” On the contrary, if theclerk intended that this execution should be satisfied out of the property of Driggs, why did he not follow the usual form in such cases? We are left in doubt as,to the meaning of this execution. We have found in the books several judgments rendered against UC.

D.'as administrator of A. B.f and then stopping without saying out of whose property they should be paid, but from these judgments, as far as we can learn, executions were issued in the usual form to be levied of the property of deceased. But the only execution we have found that does not order out of whose property it is to be satisfied is found in 51 Georgia, 483, Tinsley vs. Lee. That execution is substantially the same as the one under consideration, as appears from the following copy of- it, to wit: “We command you of the goods and chattels, lands and tenements of Thomas W.

Howell, executor of William Tinsley, deceased, that you cause to be made the sum of $238.85, principal, and the further sum of $48.23, interest and costs, which the plaintiff' lately recovered against said Thomas Howell, executor of William Tinsley, deceased.” The Supreme Court of Georgia decided that this was an execution against the individual property of Thomas Howell, saying: “ The addition of executor to his name without more, did not prevent the decree from binding his personal goods and chattels.” It is contended that the judgment rendered by the clerk, in the case under consideration, because it is against the defendant in his representative capacity, is equivalent to a judgment against the goods and estate of the intestate, and that this execution following the judgment is therefore good.

We answer that if this were so, the court below ought to have amended the judgment so as to put the matter beyond doubt. But we deny that such is the legal effect of the judgment. In the case of Hardy vs. Call, 16 Mass., 530, the court said : “ The judgment having been exhibited to us for inspection, we find that it was rendered against the defendant in his capacity as administrator. It has been argued that this is equivalent to a judgment against the goods and chattels of the intestate.

But we think otherwise ; * * * it is very clear that no judgment has been ■rendered against the goods and estate of Palmer, the intestate,” &e. We have found several cases, however, in which judgments rendered like the one under consideration have been held sufficient, to sustain executions against the property of the intestate, but on examination of all such judgments, it will be found that the judgments, as shown by the record, were based on some liability of the decedent.

In such cases the courts either amended the judgments, or else considered that as done which ought to have been done, and so sustained the executions. We have a striking illustration of this in 25 Ark.., 190, in case of Stone, Adm’x vs. Kaufman, where the jugdment was “that plaintiff have and recover of and from the defendant ” '(without adding the word “ administrator.”) Yet the court held that this was a valid judgment against defendant “ as administratrix of Jefferson Stone in her representative capacity.” And why did the court make so strange a ruling ?

Because in looking back of the judgment they found that the suit was instituted against her as administratrix of Jefferson Stone on a written instrument made by him in his life time. When we look behind the judgment in the case under consideration, we find that the judgment is not based on any evidence of the indebtedness of the decedent, John S. Adams, but only on evidence of the indebtedness of Ellen E. Adams. We cannot, therefore, reach the conclusion that there ought to have been a judgment against Driggs either out of his own estate, or out of the estate of John S. Adams.

We have a second illustration in the case of Grice, Administrator, vs. Sellers and wife, 43 Miss., 52, in which the court said: “ Grice was sued as administrator, and the recovery was .against him in that capacity. Execution de bonis propriis could not emanate on this judgment. It would have followed the line of safe precedents, and we would by no means encourage a departui’e from it, to have added ‘ to be levied of the goods and chattels of his intestate, ET.

Kennison, in his hands to be administered,’ but the judgment being against him as administrator, necessarily on such judgment the execution must go out against him as administrator, and be satisfied of the goods of the intestate.” The Mississippi Supreme Court, going behind the judgment in this case, found that Grice was sued as administrator, on a note given by Ms intestate and therefore concluded the judgment ought to be satisfied out of the estate of the intestate.

We think if that court had found that the judgment was not based on any indebtedness of the intestate, it would never have concluded that it should be paid out of the estate of the intestate. If the Supreme Court of Mississippi meant to say that every judgment against the defendant as administrator must, under all circumstances, be satisfied out of the estate of the decedent, we must respectfully differ from it.

We know that judgments are often rendered against defendants as administrators to be satisfied, sometimes de bonis testatoris, at other times de bonis testatoris as to the debt and de bonis propriis as to the costs, and sometimes de bonis testatoris when assets of deceased shall come to the hands of the administrator, &c. And if the suit on this note had been against Ellen E.

Adams, as administratrix, the judgment might have been entered against her to be satisfied de bonis propriis, the words “ as administrator being rejected as surplusage ” in the judgment as in the note sued on. ■ We have a third illustration in the case of Neely et ux., Administrator and Administratrix, vs. The Planter’s Bank. In this case of Neely vs. The Bank, the judgment was that plaintiff’s recover from defendants, administrator and administratrix of deceased. It was held by the court, (4 S. & M.,) that the judgment was not against the defendants individually, but in their representative capacity.

But why did the court thus hold ? Because by going back of the judgment they found that the suit was brought against defendants in their representative capacity, and the cause of action was’a promissory note endorsed by the decedent. But in the ease of Higgins vs. Driggs, under consideration, the cause of action was not a note endorsed either by decedent or by Driggs, but was a note of Ellen E. Adams, for the. payment of which neither the estate of Adams, nor Driggs, was bound, so far at least as is disclosed by the record.

In conclusion, we are of opinion that whenever an execution, like the one under'consideration, or any execution against an administrator which does not show out of whose property it is to be satisfied, is presented to the court, on application to stay it the court should suspend it until the judgment on which it issued can be inspected. If, on inspection of the judgment, the court finds that the execution can be amended from it, then the amendment should made.

But ■ if, on inspection of the judgment, the court finds that the execution cannot be amended from it, then the court should continue the suspension of the execution until opportunity be given to amend the judgment by inspection of the record. If, on inspection of the record, the judgment cannot be amended by it, then the court should grant a final judgment staying the execution. Such was the course pursued by the Circuit Court in the case under consideration. We find no error in its judgment. It is affirmed.