Rhea v. Hackney

• Decision Date: 22 October 1934
• Parties: RHEA v. HACKNEY.
• Court: Florida Supreme Court

157 So. 190

117 Fla. 62

RHEA v. HACKNEY.

Florida Supreme Court

October 22, 1934

En Banc.

Error to Circuit Court, Marion County; W. S. Bullock, Judge.

Action by Thomas Hackney against William H. Rhea. To review an order striking defendant's pleas as sham and judgment by default and an order denying a motion to vacate and set aside such order and judgment, defendant brings error.

Reversed and remanded with directions.

ELLIS J., dissenting in part.

COUNSEL E. H. Wilkerson, of Eustis, and E. H. Martin, of Ocala, for plaintiff in error.

F. R Hocker, of Ocala, for defendant in error.

OPINION

DAVIS Chief Justice.

The principal question presented in this case is the authority of a court of law, independent of court rule or statute, and in the exercise of its inherent judicial power, to strike as sham pleas interposed by a defendant which are shown to be false and filed merely for delay, though apparently good on their face and verified in legal form, and thereupon to give plaintiff a final judgment against the defendant as upon default for want of any defense whatsoever. The court below ruled in the affirmative. The resulting judgment entered by that court has been brought here on writ of error sued out to this court by the defendant below.

The cause of action set forth in plaintiff's declaration was an action on several promissory notes alleged to have been executed by Rhea and not paid at maturity. On August 28 1931, the defendant secured an order granting until October rule day of that year to plead to plaintiff's declaration. On October 30, 1931, pleas were filed. Among those filed were pleas of 'never was indebted as alleged,' denials that 'plaintiff had ever demanded payment of the notes with interest thereon,' a plea that plaintiff had agreed to extend the maturity of the notes until January 1, 1932, and had agreed (but without consideration being stated therefor) not to require payment until after that time, pleas of payment, and pleas that the notes sued on were not defendant's notes. The declaration was in five counts and the pleas were addressed to each of such counts. All of the pleas except the pleas of nonexecution of the notes and of payments went out either on demurrer or motions to strike and defendant was given until March 10, 1932, to file amended or additional pleas.

On March 10, 1932, certain amended or additional pleas were filed. These pleas were in substance the same as the pleas first interposed and held bad. As a result they likewise went out either on motions to strike or on demurrers. Ten days were allowed defendant to file further pleas as he might be advised.

On April 6, 1932, the defendant again filed amended and additional pleas. These pleas embraced a plea of set-off. Again plaintiff filed demurrer and motion to strike these pleas. The motion to strike and the demurrers were sustained. The court, however, once more allowed additional time within which to file amended and additional pleas. More pleas were filed and motions to strike and demurrers to same were again successfully interposed by plaintiff. The court again allowed more time for the filing of amended and additional pleas. No additional or amended pleas were filed pursuant to the last order.

So the final situation resulting from all of the foregoing course of pleading had and allowed on defendant's part in the case was that on May 17, 1932, the attorney of record for defendant withdrew his name as counsel of record and another attorney entered his appearance as attorney of record to succeed him. At the time of this latter happening there stood of record in the cause an unchallenged plea of payment and an unchallenged plea that the defendant Rhea did not make nor execute the notes sued on.

On June 6, 1932, the plaintiff filed before the circuit judge his sworn written motion to the following effect: That suit had been brought on July 21, 1931, to collect the claim sued on which was represented by signed promissory notes of the defendant William A. Rhea amounting to $36,149.60, representing money lent or advanced by plaintiff to Rhea; that the claim sued on was just; that it was so admitted on Rhea's part; that notwithstanding the fact that the debt was admittedly due and unpaid, various dilatory and unfounded pleadings had been filed by Rhea in an endeavor to postpone and delay plaintiff in obtaining a judgment against defendant; that all pleas theretofore interposed except two had been adjudged bad on their face and eliminated; that those remaining were untrue, sham, and false in fact and were being interposed solely and only for the purpose of 'holding up' the entry of judgment in this suit until certain alleged collusive judgments were obtained by other plaintiffs in other cases recently instituted against Rhea in an attempt to have judgments therein entered against him prior to the convening of a term of court in Marion county at which time a judgment would most certainly be entered against Rhea in the present case; that defendant Rhea by means of his sham pleas in this case was endeavoring to effect the design of holding up the entry of any judgment in this suit until after collusive judgments would be first obtained in the other suits referred to; that Rhea hoped thereby to make the judgment that he knew was certain to be entered in this case when court convened, inferior in priority to the sham and collusive judgments which defendant expected to have entered against him in said other cases which would result in judgments being entered prior to the convening of any term of court at which the sham issues presented by the particular pleas in this case should be disposed of in the usual way through a formal trial by jury during term time.

Based upon plaintiff's sworn petition aforesaid and upon certain other corroborating evidence in written form filed in support thereof, the circuit judge on June 6, 1932, in advance of Marion county term time (which would not begin until June 13, 1932), made and entered a special order of court disposing of defendant's pleas as sham. Upon such special finding and order which is hereinafter quoted in full, final judgment was forthwith entered for the plaintiff for the full amount of his claim as proved up before the judge in the usual manner of procedure followed where promissory notes are reduced to judgments. The court's order striking defendant's pleas as sham was as follows:

'This cause coming on to be this day heard, upon motion of the plaintiff for entry of an order striking as sham the general pleas of the defendant of payment, and denying the execution of the notes herein sued upon, and it appearing to the court that the defendant in this suit has obtained concessions from this court in the matter of time of filing of pleas, and upon several occasions asked for additional time to plead over, all of which requests have been granted, and that the tactics of the defendant in this case indicate clearly that the real purpose and intent was to delay the entry of a judgment herein as long as possible; and

'It further appearing to the court that the attorney for the defendant filed his withdrawal as such attorney herein on the 17th day of May, 1932, and shortly thereafter the said attorney instituted a suit in this court against the said defendant on a note purporting to be executed by the said Rhea to the said attorney on the 14th day of May, 1932, for $11,746.38, the summons in which suit is returnable to the rule day in June, 1932, and service of such summons was accepted by the said defendant Rhea; and

'It further appearing to the court that on the 26th day of May, 1932, three suits were filed in this court, one by Walter L. Davis, one by Roy Coyne and one by E. H. Wilkerson, all of which suits are against the said defendant, Rhea, and in which said suits the said E. H. Wilkerson is named as plaintiff's attorney; and

'It appearing that the said suit in which the said Wilkerson, representing himself, is for $15,789.75 alleged to be due the said Wilkerson as attorney's fees for services to the said Rhea, and bill for which was rendered May 11th, 1932, and on May 16th, 1932, the said Rhea is shown to have written a letter to the said Wilkerson admitting such indebtedness, and

'It further appearing to the court that suit has been started in the circuit court of Orange County, Florida, against the said Rhea by C. D. Walker, in which Dickerson & Dickerson, attorneys of Orlando, Fla., appear as attorneys for the plaintiff; and

'It further appearing to the court that the sheriff of Marion County, Fla., was directed to and did return the summons in all of said suits to the said E. H. Martin, who was the attorney for the defendants in this suit,

'That from these facts and circumstances it is obvious to the court that it is the purpose of the defendant to take advantage of this court and its process and its consideration by delaying the plaintiff in this suit obtaining a judgment until judgments can be obtained in these various other cases, which judgments might be prior liens to any judgment the plaintiff could herein obtain, and this court being of opinion that to sanction or permit any such procedure of practice would in effect to a large extent stultify this court and render the institution of a suit by plaintiff therein a vain proceeding.

'Therefore, in consideration of the premises and the patent fact that the remaining pleas in this record are mere shams and contradicted by the answers to the interrogatories propounded to the defendant herein, and inspection of the original instrument, showing obviously that they were signed by the defendant, and in fact the signature and execution thereof having been admitted by the defendant in various pleas,

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