Adams v. Burns

• Decision Date: 29 June 1936
• Citation: 126 Fla. 685,172 So. 75
• Parties: ADAMS v. BURNS.
• Court: Florida Supreme Court

172 So. 75

126 Fla. 685

ADAMS v. BURNS.

Florida Supreme Court, Division A.

June 29, 1936

Rehearing Denied Sept. 10, 1936.

Error to Circuit Court, Duval County; Miles W. Lewis, Judge.

Action of detinue by W. H. Burns against W. H. Adams. To review an amended judgment for plaintiff, defendant brings error.

Reversed with directions to vacate the judgment.

See also, 119 Fla. 770, 161 So. 712.

On Petition for Rehearing.

COUNSEL

Charles A. Powers and Charles A. Powers, Jr., both of jacksonville, for plaintiff in error.

W. C Jonson, George C. Bedell, and Chester Bedell, all of Jacksonville, for defendant in error.

OPINION

BROWN Justice.

An action of detinue was begun by W. H. Burns against W. H Adams on August 24, 1933, by filing a praecipe for summons ad respondendum.

The declaration, which was filed September 4, 1933, was the usual statutory declaration, see section 4314, C. G. L., declaring substantially that defendant did, on July 14, 1973, detain from plaintiff a certain tugboat called the Vida D together with certain equipment, valued at $2,500; a lighter approximately 20 x 60 feet, equipped with a 15,000 gallon tank and other equipment, valued at $1,200; a lighter approximately 22 x 70 feet, named the Iwanowski, together with certain equipment, valued at $600.

To this declaration, the defendant filed eleven pleas as follows: (1) A plea of not guilty; (2) a formal plea of non detinet in the past tense; (3) a formal plea of non detinet in the present tense; (4) a formal plea of non detinet in both the past and the present tenses; (5) a plea based on the distress proceedings had in the civil court of record wherein Florida Fish & Produce Company was plaintiff and Jacksonville Machine & Dry Docket Company and W. H. Burns were defendants, raising the question of the jurisdiction of the circuit court over the res at the commencement of the action, and showing possession of the property to be in the sheriff, a third party; (6) a plea similar to the fifth but pleaded puis darrien continuance and being based on the writ of execution and the sheriff's return thereon in the case of Florida Fish & Produce Company against Jacksonville Machine & Dry Dock Company, in the civil court of record; (7) a formal plea denying property of the plaintiff in the goods; (8) a formal plea denying property of the plaintiff in the goods on July 14, 1933, and at all subsequent times; (9) a special plea setting up the two-year statute of limitations, section 5778, C.G.L.; (10) a special plea setting up the two-year statute of limitations, section 5778, C.G.L., and also setting up the distress writs and the returns of the sheriff thereon in the case of Florida Fish & Produce Company against Jacksonville Machine & Dry Dock Company, in the civil court of record; (11) a special plea puis darrien continuance setting up not only the two-year statute of limitations, section 5778, C.G.L., but also the writ of execution and the sheriff's return thereon in the case of Florida Fish & Produce Company against Jacksonville Machine & Dry Dock Company in the civil court of record.

Plaintiff's demurrer to the fifth, sixth, ninth, tenth, and eleventh pleas was sustained by the court.

Defendant's motion that he be allowed to refile his amended fifth and sixth pleas was denied by the court.

Defendant's motion that he be allowed to refile his second amended ninth, tenth, and eleventh pleas, and an original twelfth plea, which set up the estopped of plaintiff, W. H. Burns, to bring this action due to his participation in the case of Florida Fish & Produce Company against Jacksonville Machine & Dry Dock Company, in the civil court of record, was denied by the court. Further, in said order, the court of its own motion struck the first plea of not guilty.

Defendant's motion for leave to file a third amended tenth plea as well as an original thirteenth plea, which was a plea in abatememt to the effect that the property was lawfully levied upon by the sheriff and had been placed with the Florida Fish & Produce Company as his bailee; that no demand prior to institution of the action had been made on defendant; that the sheriff was still living, was still sheriff and resident within the jurisidiction, was denied by the court.

Defendant made another motion that he be allowed to file his third amended tenth plea by interlineation instanter, which motion was denied by the court.

Defendant made a motion, before trial, to quash the venire facias and the special venire. The court denied the motion.

Trial was had upon the issues as made by the pleadings. The case went to trial upon three pleas denying detention (second, third, and fourth) and two pleas denying property in the plaintiff (seventh and eighth).

After introduction of the evidence, upon hearing the argument of counsel and the instructions of the court to the jury, the jury returned a verdict in favor of plaintiff, in which it valued the Vida D at $1,500, one of the lighters at $600, and the other lighter at $1,000; and found that damages due to the detention were $3,213.

Final judgment was entered upon the verdict.

Defendant filed a motion for a new trial, a motion in arrest of judgment, a motion for a venire facias de novo, and a motion for repleader, all of which were denied by the court, on condition that a remittitur of $400 on the value of the lighter assessed at $1,000 be entered by the plaintiff.

Plaintiff entered the remittitur of $400 as provided in the order of the court, after which an amended judgment for plaintiff was entered, to which defendant took this writ of error.

It appears from the recod that on June 9, 1933, the Florida Fish & Produce Company, of which W. H. Adams was president, brought a distress action against the Jacksonville Machine & Dry Dock Company, in the civil court of record. An original distress writ was issued and levied upon certain property, including the two lighters involved in this litigation. This property being deemed insufficient to meet the amount claimed, an alias writ was issued and levied upon the tugboat Vida D. Then a pluries writ was issued not only against the Jacksonville Machine & Dry Dock Company but also against W. H. Burns as defendants and levied on all the property theretofore levied upon. On July 24, 1933, W. H. Burns filed a claim affidavit alleging that the tugboat Vida D, which, he alleged had been levied on by the sheriff, belonged to him. On August 18, 1933, W. H. Burns filed a defense affidavit swearing that the rent as claimed in plaintiff's affidavit was not due. The distress proceeding came to trial August 21, 1933, and W. H. Burns moved, on technical grounds not here important, to quash the pluries writ and dismiss the cause as to himself, which motion the court granted as to Burns 'without prejudice.' The court also, on Burns' motion, allowed him to withdraw the claim affidavit that he had filed in the cause. Judgment in that cause was entered in favor of the Florida Fish & Produce Company against the Jacksonville Machine & Dry Dock Company. Execution issued on that judgment September 6, 1933, and was levied upon all of the property which had been levied upon under the distress writs, together with certain other personal property. The property was sold at public sale on September 22, 1933. Dan Burns, the brother of W. H. Burns, was the highest bidder, but was unable to raise the money to cover the bid within three days after the sale, and, according to agreement between the parties, the property was sold to the next highest bidder at the sale, the Florida Fish & Produce Company, for $1,450.

The record further shows that the tug boat Reyner, which was later renamed the Vida D, was manufactured by J. Reyner & Sons, Inc., of Newport News, Va., who sold it to J. E. Iwanowski of Jacksonville, Fla., who sold it to W. H. Burns on November 17, 1930. Ownership of the two lighters involved in this litigation was also claimed by Burns. The tug boat and lighter accounts were kept in the books of the Jacksonville Machine & Dry Dock Company, of which Burns was president, and the ledger of that company, covering the boat and lighter accounts, showed debits of $9,598.52 and credits of $18,491.36, thus showing an apparent profit to the company of nearly $9,000. This was attempted to be explained by plaintiff by saying that it was money advanced by him to the company on Saturdays to meet pay rolls.

The return on the original distress writ showed that the property levied on was placed in the custody of the Florida Fish & Produce Company, of which W. H. Adams was president. The return on the alias distress writ failed to show that the property levied on was placed in the custody of any one. The pluries distress writ showed that the property levied on was placed in the custody of W. H. Adams. But the record as a whole satisfactorily shows that the property levied upon was, by the sheriff, placed in the custody of either the defendant Adams or the Florida Fish & Produce Company of which he was president, as the bailee of the sheriff.

Inasmuch as there was evidence to the effect that W. H. Burns was, until some time in 1933, hauling petroleum products for the Gulf Refining Company with the tug boat Vida D and the two lighters, there was no conclusive showing that the Vida D and the two lighters had remained in the possession and control of the defendant in the distress writs for two years in such sort as to permit the defendant in the detinue case to invoke the provisions of section 5778, C.G.L. But that is not a controlling consideration on this writ of error, as will later appear, nor is the question of the constitutionality of chapter 16058, Acts 1933, properly presented for our consideration here.

Detinue is, generally...