Opinion
October 14, 1952. Rehearing Denied November 12, 1952.
Appeal from the Circuit Court for Dade County, William A. Herin, J.
Redfearn Ferrell, Miami, for appellants.
J. Morley Turner, South Miami, and Vernon W. Turner, Homestead, for appellees.
Appellees (plaintiffs below) filed their complaint in the Circuit Court in and for Dade County, Florida, against appellants (defendants below) in which they sought to have a judgment previously entered against both of them in the Civil Court of Record of Dade County on March 26, 1940, set aside and held for naught as against the wife, Julia R. Turner. The Chancellor granted this relief and appellants do not now complain of his action in so doing. Consequently, we will not deal further with this topic. Subsequently, appellees filed an amendment to their complaint in which they prayed that the sheriff's deed which was issued on June 10, 1943, and which conveyed to the appellants the property involved in this litigation, be declared void.
The facts relied upon by appellees, insofar as they are material herein, are in substance: that after the entry of the judgment in the Civil Court of Record and before a writ of execution on said judgment was issued, A.L. Carson, the judgment creditor, died leaving several heirs at law including a daughter, Daisy Mae Beitler, one of the appellants herein; that without any revivor being sought or secured the aforementioned execution issued and pursuant thereto a sheriff's sale was held at which sale the subject property was sold to Daisy Mae Beitler and Frederick V. Beitler, her husband, for the sum of $250.
Appellees' contention, that the execution and the sheriff's deed were void, was sustained by the Chancellor who set aside the sheriff's deed and ordered that the sum of $250, which was the amount paid by appellants for the sheriff's deed, be paid to said appellants with interest thereon at the rate of 6% per annum from June 10, 1943, and further decreed that the appellants should have a lien on the property described in said sheriff's deed for said sum pending payment thereof.
The special master made a conclusion of law which was adopted by the Chancellor to the effect that "The execution issued on July 13, 1942, in his name [A.L. Carson, who died on August 25, 1940] without any probate proceedings or letters of administration having been issued and without any proceedings to revive said judgment having been taken, was void, and all acts done thereunder, including the sheriff's sale and the execution and delivery of the sheriff's deed, were nullities." The special master was of the view that execution could not issue in the name of a dead man and that upon the death of Carson the judgment became dormant and that thereafter, and until it might be revived in the name of the personal representative of the deceased's estate, no further valid proceeding could be taken. He cited as authority for his conclusion of law the case of Florida Central P.R. Co. v. Luffman, 45 Fla. 282, 33 So. 710, and Mitchell v. St. Maxent's Lessee, 4 Wall. 237, 18 L.Ed. 326.
Our examination of these authorities does not lead us to the conclusion that they necessarily support the pronouncement of law as made by the special master. In the former case there was an attempt made to revive by both the administrator and an alleged assignee of one-half interest in the judgment. The question presented was whether a plea denying the assignment of a one-half interest was a good defense to the right to revive. We held that it was. The question whether there could have been a revivor in the instant suit is immaterial to the determination of the query whether the execution and the sheriff's sale and deed were absolutely void. The case of Mitchell v. St. Maxent's Lessee, supra, arose in the Federal Court in Florida and was finally determined by the United States Supreme Court. That case was decided without consideration being given to Sec. 45.16, Fla.Statutes 1949, F.S.A., because said statute was not in existence at the time of the institution of said suit.
Section 45.16, supra, is relied upon heavily by appellants herein as being support for their contention that the execution and the sheriff's deed are not void or even voidable. It reads: "The death of either party between the verdict and judgment and the issuing or return of execution shall not be alleged as error." Appellees, in an attempt to avoid the possible effect of Sec. 45.16, supra, say that "this statutory provision merely attempts to eliminate the setting up of either party's death as error for the purpose of voiding the proceedings prior to such death, and nothing more." With this contention we cannot agree. Under the Common Law up until the enactment during the 17th year of the reign of Charles II of the statute 17 Car. 2, chap. 8, Sec. 1, the death of either plaintiff or defendant at any time before final judgment would abate the suit and a final judgment entered against a deceased party was absolutely void. It was also true at Common Law that if either party died after judgment but before issuance of execution the execution was void if there were no revivor. However, after the enactment of the aforementioned statute, which reads: "In all actions, personal, real or mixed, the death of either party between the verdict and the judgment shall not be alleged for error, so as such judgment be entered within two terms after such verdict", it was consistently held that where either party died between the time of the rendition of the verdict and the entry of final judgment, such judgment was not void because of the operation and effect of said statute.
At a later date the statute 8 and 9 W. 3, which is almost word for word like Section 45.17, F.S.A., was enacted. We do not, however, deem it necessary to discuss in detail Sec. 45.17, supra, because the judgment creditor in this case did not die after an interlocutory judgment and before final judgment. He departed this life after the entry of the final judgment and before execution issued, but was living at the time of the entry of the default or interlocutory judgment upon which said final judgment was predicated. Although Sec. 45.17, supra, provides that an action shall not abate if either the plaintiff or the defendant should die after an interlocutory judgment and before final judgment, it does not use the words "shall not be alleged as error" or any of similar import but expressly outlines the procedure to be followed before a lawful entry of final judgment can be made.
It has been held by some courts that if the plaintiff die after the verdict and before judgment the judgment should be considered as regularly entered and not void, but scire facias must be sued out at the instance of plaintiff's representative — otherwise it will be considered irregularly issued and set aside. Such rulings are predicated entirely upon the statute 17 Car. 2, c. 8, § 1, or some current statute of similar wording. The real question for our determination is the proper construction that should be placed upon Sec. 45.16, F.S.A. Since it has uniformly been held that a judgment entered after the death of a party plaintiff between the verdict and the judgment is not void because of the effect of the statute 17 Car. 2, c. 8, § 1, or of one patterned upon it, we do not see how it could be held in the light of Sec. 45.16, supra, that an execution is void when the death of the plaintiff occurs after the rendition of the verdict and entry of the judgment and before the issuing or return of such execution. Sec. 45.16, supra, is remedial legislation and its purpose was obviously to enlarge upon the old English Statute which only provided its protection to a final judgment in case either party should die between the verdict and the judgment. It was patently the intention of the Florida Legislature to extend the protection of our statute so that not only would a judgment be valid if either party to a suit should die between the verdict and the judgment but an execution would likewise be valid if either party should die after the rendition of the verdict and the entry of the judgment but before "the issuing or return of execution."
It is a fundamental rule of grammar that when the preposition "between" is used it applies in its literal sense to only two objects. Usually it connotes an intervening space or period of time from one location or event to another. It is, however, sometimes used of more than two objects. When so used it brings them severally and individually into the relation expressed. The only method by which we can give the construction to Section 45.16, supra, which is contended for by appellees would be to consider the statute as though it read: the death of either party between the verdict and judgment and the death of either party between the issuing and return of execution shall not be alleged as error. We cannot adopt this construction because the statute uses the words "the issuing or return of execution". (Italics supplied.) We would not be justified in totally disregarding the disjunctive particle "or" and substituting therefor the conjunctive particle "and." Certainly we would not be warranted in doing so unless a consideration of the statute as a whole in the light of its object and purpose should require such a construction, which is not the case. Nor can we be persuaded to the view that the legislature intended to leave a period of time — a hiatus, if you please — between the date of judgment and the issuance of execution within which the death of either party would make further proceedings void.
Moreover, we find upon examination of the history and source of Sec. 45.16, supra, that it has consistently borne the title "death of party after verdict." It is clear that unless we give the construction which we do herein give to said section the purpose of the legislature in extending the remedial effect of the statute 17 Car. 2, c. 8, § 1, will be defeated.
The legislature by the original enactment of Sec. 45.16, supra, intended that the death of either party after verdict but before the entry of judgment, or the issuing or return of execution should not be alleged as error and it meant thereby that the death of either party after verdict would not render void a subsequently entered judgment nor would a later issuance or return of execution be invalid because of such death. Obviously the legislature felt that there was no more reason to require a revivor if either party should die after the judicial labor was at an end, that is to say, after the entry of final judgment, than there was to require a revivor in the event either party should die after the trial was over, that is to say, after the rendition of the verdict and before the entry of final judgment.
We deem it appropriate to advert to the significant fact that an attorney of record is specifically authorized to have a writ of fieri facias issued upon the judgment at his own request. Old Common Law Rule 72 expressly so provides, as does, also, new Common Law Rule 50, 30 F.S.A.
We hold that the execution which was issued in this case was not and is not void and that the learned Chancellor erred in holding it to be. We further hold that the sheriff's deed of June 10, 1943, consequent upon such execution is valid as against the collateral attack made upon it.
Reversed.
SEBRING, C.J., and TERRELL, ROBERTS and MATHEWS, JJ., concur.
THOMAS, J., agrees to conclusion.
DREW, J., not participating.