Higgins v. Driggs

Citations

• 21 Fla. 103

Syllabus

<p>1. A judgment entered by tbe clerk in vacation ought not to be amended when it appears from the record that no judgment ought to have been entered.</p> <p>2. An execution against an administrator should be suspended when it does not appear on its face whether it is to be satisfied out of the individual property of the defendant or out of the pi’operty of his intestate.</p> <p>8. E. P. A., executrix of J. S. A., made a note by which she promised to pay to H. S. H., or his order $1,097, on demand, with interest at ten per cent., and signed said note “E. P. A., executrix of the estate of J. S. A.” Held, That this was the note of E. P. A., and did not bind the estate of J. S. A.</p> <p>4. E. P. A., executrix, having died, J. S. D. was appointed administrator de bonis non of J.' S. A., and was sued as such on the above note. Ho plea, answer or demurrer having been filed, the clerk in vacation on the proper rule day, on no other proof than said promissory note, entered judgment that plaintiff “ home and recover to, of and from the defendant as administrator of J. 8. A., deceased,” the amount of said note and costs. Here the judgment stopped without saying out of whose property it was to be satisfied. Plaintiff moved to amend the judgment “so as to haveitreadandappearofrecordas against the goods, <fc., of J. S. A, dee’d.” This motion was refused by the Circuit Judge: Held, That this ruling was correct, because on the proof before him, the clerk ought not to have entered any judgment, either against the defendant individually or as administrator of J. S. A., to be levied of the goods, &c., of the latter, and the court ought not to amend a judgment entered by the clerk when it appears from the record that the clerk ought not to have entered any judgment. The execution commanded the sheriff “that of the goods, &c., of J. 8. JD., as administrator of the estate of J. 8. A., deceased, you cause to be made ” the amount of said judgment and costs. The Circuit Judge, on motion,