Matthews v. Williams

Citations

• 13 Fla. 615

Syllabus

<p>3. A Sheriff was required by a rule of court to report what action had been taken under an execution, and reported on oath that he had sold property of the defendant in judgment and execution, (who was an administratrix,) and had realized a sum of money from said sale, but that he had, before sale of the property, been notified of the fact that the administratrix had filed notice of the insolvency of the estate in the Probate Court, and that such notice of insolvency was on file in the records of said Probate Court; whereupon on the motion of the attorney of the plaintiffs in the judgment and execution, the court ordered the Sheriff to pay over to the said attorney the money realized on said execution from such sale, or stand committed as for contempt, and the Sheriff paid over said moneys under the order. Held: That the return of the Sheriff that a suggestion of the insolvency of said estate had been duly made and filed in the Probate Court, tendered an issue to the rule, and the peremptory order to pay over the money to the attorney without inquiring into the truth of the return was an error, and if such suggestion of insolvency had in fact been filed by the administratrix, it was unlawM to direct the Sheriff to pay the money to the attorney, as the money represented assets of the insolvent estate and should be distributed pro rata in the settlement.</p> <p>2. When money has been thus paid over, and the order is reversed or set aside, the court should require the money to be restored, and is clothed with power to enforce restitution by summary process.</p>