Summary
In Black v. Walker, 140 Fla. 48, 191 So. 25, and State ex rel. Steinfort v. District Court of Fourth Judicial District in and for Ravalli County, 111 Mont. 216, 107 P.2d 890, amendments to the claim after the expiration of the nonclaim statute were held to be proper because they did not result in a change of the cause of action and because they did not result in an increase in the amount of the claim.
Summary of this case from Minor v. LillardOpinion
Opinion Filed September 15, 1939 Rehearing Denied October 6, 1939
A Writ of Error from the Circuit Court for Pinellas County, John U. Bird, Judge.
B.M. Skelton, for Plaintiff in Error;
J. Carl Lambdin, for Defendant in Error.
Defendant in error as plaintiff brought this action against the plaintiff in error as defendant to recover for services rendered defendant's testatrix, who died in 1931. There was a judgment for the plaintiff and defendant took writ of error.
It is contended that the claim is barred under Sub-section 2 of Section 4648, Compiled General Laws of 1927, because action was not brought within two years from the issuance of letters testamentary.
The record discloses that the claim was filed within one year from the appointment of the executor, but after two years had expired, the executor required a more specific statement of the claim. The county judge properly permitted defendant in error to amend her claim in certain particulars, no change being made in the amount. The amended claim was rejected in 1934, and suit was then promptly instituted against the executor The statute referred to did not bar this action. See Barnes v. Scott, 29 Fla. 285, 11 So. 48 Ramseyer v. Datson, 120 Fla. 414, 162 So. 903. See also 76 A.L.R. 1380.
The amended claim was filed under the direction of the county judge and was for the same amount and purpose as the original claim. Other particulars in which it was amended are not material. It was for services rendered which are admitted to have been performed. It would be a gross injustice to permit it to be defeated under such circumstances.
Affirmed.
WHITFIELD, P. J., and BROWN and CHAPMAN, J. J., concur.
TERRELL, C. J., concurs in opinion and judgment.
Justices BUFORD and THOMAS not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.