CHARLES S. ADAMS, ADMINISTRATOR, &C., PLAINTIFF IN ERROR,

v.

HELEN REQUA, FOR USE OF EDWIN HIGGINS, DEFENDANT IN ERROR; CHARLES S. ADAMS, ADMINISTRATOR, &C., PLAINTIFF IN ERROR, VS. A. J. WAKEFIELD AND EDWIN HIGGINS, DEFENDANTS IN ERROR

The Chief Justice delivered the opinion of the court:

The plaintiff made her motion in the Circuit Court of Duval county to amend a judgment rendered in the Circuit Court of said county on the 12th day of November, A. D. 1879, wherein she was plaintiff for the use of Edward Higgins, and “John S. Driggs, Administrator of J. S. Adams, deceased,” was defendant.

The object of the motion was that the judgment and execution should be so amended as that it should appear thereon that they were awarded against John S. Driggs, as administrator de bonis non, cum testamento annexo, of J. S. Adams, deceased. The rule is settled that a judgment rendered at one term may be amended at a subsequent term,. nunc pro tunc, when from the record in the cause it is apparent, on inspection thereof, that the proposed amendment would have been a part of the original judgment, or that the original judgment would have been in accordance-therewith if it had not have been for the inadvertence of the court, or an error or omission of the clerk.

The rule that the record admits of no alteration after the term, is obsolete. Freeman on Judgments, sec. 71. What is proper data to authorize an amendment, is a matter on which the decisions of the courts of the different States are contradictory. The better opinion seems to be that no record can be amended but by matter of record. Pittman vs. Law, 24 Georgia, 429 ; Fennell vs. Jones, 7 Bush, 359 ; Stephens vs. Wilson, 14 B. Monroe, 88 ; Makepeace vs. Lukeus, 27 Ind., 435; Moody vs. Grant, 41 Miss., 565.

The record, the judgment and the execution contained in which is sought to be amended, shows that a suit was brought against John S. Briggs, administrator of J. S. Adams, deceased, on two promissory notes alleged to have-been made by said Adams, in his life-time, and contains no-statement of any cause of action against Briggs individually. It was unquestionably a claim or demand against Briggs in his representative capacity and must have been so understood by all the parties to the suit. In a similar-case in New York, and which has mainly contributed to-our conclusion, (Beers vs. Shannon, 73 N. Y., 292,) the suit was entitled “ John L. Beers, executor of the last will and testament of John Beers, deceased.”

The court say: “ The first point made by the defendant is this, that the action is not brought by the plaintiff in a, character representative of the deceased obligee. This is based mainly upon the omission of the word ‘ as ’ between the name of the plain tiff John L. Beers, and the description of him, ‘ executor of, etc., of John Beers, deceased.’ in the title of the summons, and in the body of the summons, and in the title to the complaint. It is true that Without that word, in that position, it has been sometimes held that the addition to the name of the party is but a descriptio personae, and does not give to him other than a 'personal or individual character in the action. But it has been held, on the other hand, that though there be nought in the title of the process or the complaint to give a representative character to the plaintiff, that the frame and averments and scope of the complaint may be such as to affix 'to him such character and standing in the litigation. Stillwell vs. Carpenter, in Mem., 62 N. Y., 639, reported in full, 2 Abb., (N. C.,) 238. In the case in hand, the averments of the complaint are such that the defendant had full notice of the questions to be tried; that there was a definite issue presented for trial; that the judgment to be recovered might show what was determined by it, and that any other question, dependent upon the character in which the plaintiff sued, could be readily presented. It was plain from the complaint that the cause of action, if any, devolved upon the plaintiff, as a representative of the deceased obligee, by the creation of a representative relation by the will.”

“ The remedy was patent and easy by motion to amend.” Ib.; see also Stillwell vs. Carpenter, 62 N. Y., 639; Shand vs. Hauly, 71 N. Y., 222 ; Snead vs. Coleman, 7 Grattan, 300.

The judgment should have been properly against Briggs in his representative capacity, (Branch vs. Branch, 6 Fla., 314,) but under our liberal system of amendments which makes it the “duty of the courts of this State, and of every Judge thereof, at all times to amend all defects and errors in any proceeding in civil cases,” (sec. 97, McC’s. Digest, p. 834,) if it had been called to the attention of the court at the trial the record would have been amended by inserting the word “ as ” before the designation of his representative capacity, it being apparent from the body of the declaration that such was plainly the intention. It still being apparent from the record there can be no objection to making the amendment at a subsequent term nunc pro tunc. The record also shows that it was Driggs, as administrator de bonis non, cum testamento annexo, who was intended, and this amendment was properly allowed. As to any rights acquired or lost under this judgment prior to the amendment in the court below, we express no opinion.

There is no error in the record and the judgment is affirmed.