Hart's Executor v. Smith (20 Fla. 58, 1883)

The Chibe Justice delivered the opinion of the court.

Plaintiff in error contends that there was error in allowing the petitioner to' amend his petition so as to show the death of Edwin A. Hart, after the return and entry of the mandate of the Supreme Court, “ there being no case in court.” \

The Supreme Court, it is observed, merely reversed the order of the Circuit Court and remanded the cause for the further proceedings according to the law and practice. The defect appeared to be the want of a certain allegation in the petition. This court did no. dismiss the petition nor order it to be dismissed. The ease went back to stand as though no final order or judgment had been entered, and the matter still pending on the prayer of the petition and the auswer.

After a cause is remanded to the inferior court, such court may receive additional pleadings or admit amendments to those already filed, even after the Appellate Court has decided such pleas to be bad on demurrer, unless the Appellate Court otherwise directs. The Marine Ins. Co., vs. Hodgson, 6 Cranch, 206; The U. S. vs. Boyd, 15 Peters, 187, 209.

The amendment was as clearly within the power of .the court as though the Circuit Court itself had held the pleading' defective for want of a necessary allegation. The statute relates to amendments of “ defects in any proceeding in civil causes.” Act of February 8, 1861.

The second error assigned is that the court refused (o allow an amended answer to he withdrawn for the purpose of moving to vacate an order allowing a rehearing and amendment of the petition.

There is no substance in this suggestion. The respondent having waived objection to an amendment of the petition by pleading to it should, not trifle with the patience of the court l>y thus withdrawing his waiver. The court had the .power to allow the amendment and properly exercised it.

The third error alleged is the order sustaining petitioner’s demurrer to respondent’s amended answer.

The answer demuri'ed to averred, that respondent had not intermeddled or administered the effects of the estate of James L. Hart, deceased, and was not his executor, and that “ before the amendment,” he had, as the executor of Penelope Hart, deceased, filed in the Probate office a renunciation of all right to act or become the executor of said James L. Hart, deceased, which renunciation had been accepted and filed by the County Judge.

The rule, as laid down in the books, in the absence of a statute changing it. is, that if there he a sole executor of A., the executor of such executor is, to all intents and purposes, the executor and representative of the first testator. 1 Williams on Ex., 6 Am. Ed., 2'93, [254.]

In Worth vs. McAden,l Dev. & Batt E