Adelhelm v. Dougherty

• Decision Date: 27 October 1937
• Citation: 176 So. 775,129 Fla. 680
• Court: Florida Supreme Court
• Parties: ADELHELM et al. v. DOUGHERTY.

176 So. 775

129 Fla. 680

ADELHELM et al. v. DOUGHERTY.

Florida Supreme Court, Division A.

October 27, 1937

Error to Circuit Court, Palm Beach County; C.E. Chillingworth Judge.

Action by Jeanie W. Dougherty, a widow, against Mrs. August F Adelhelm, also known as Lenea Stromberg, joined by her husband August F. Adelhelm, and August F. Adelhelm individually, for damages for unlawful entry and wrongful eviction. From a judgment on a verdict for plaintiff defendants bring writ of error.

Affirmed.

COUNSEL

Elmore Cohen, of West Palm Beach, and George B. Mehlman, of Jacksonville, for plaintiffs in error.

M. D. Carmichael and Charles Britton Fulton, both of West Palm Beach, for defendant in error.

OPINION

BUFORD Justice.

The writ of error in this case brings for review judgment in favor of the plaintiff in a suit to recover damages for an alleged unlawful entry upon and wrongful eviction of the plaintiff from such premises occupied by the plaintiff.

Plaintiffs in error present four questions as follows:

'1. Should the lower court have granted the motion made by Plaintiffs in Error for directed verdict as to the first three counts of the Amended Declaration where the evidence showed that the Deputy Sheriff acting in the capacity of same evicted the tenant by virtue of a warrant for possession which ordered the Sheriff to re-instate the owner, and that the Deputy Sheriff was not acting as agent of the owner?'

'2. Should the lower court have instructed the jury that the Sheriff or Deputy Sheriff had no right after the judgment was vacated to oust the tenant from the possession of the property, and if the Deputy Sheriff went out there after the judgment was vacated and undertook to oust the tenant he was there through no lawful authority or process of Court?'

'3. Should the lower court have granted the motion for new trial where the evidence of the plaintiffs in error sustained their plea that the defendant in error was not in lawful possession of the property as lessee, and where the evidence further showed that the tenant was evicted on a warrant for possession obtained by the owner after a judgment for default was entered against the said tenant?'

'4. Was the evidence sufficient to sustain the verdict, particularly, as to punitive damages?'

The record shows that August F. Adelhelm filed his petition for removal of tenant against Jeanie W. Dougherty, a widow. Service was had upon Mrs. Dougherty; she failed to file motion to quash the summons or affidavit denying the petition or other pleading. On February 7, 1936, default and final judgment was entered. On the same date the clerk of the court issued a warrant for possession. The warrant was returned showing on its face that it was executed on February 7, 1936, by putting the plaintiff August F. Adelhelm in possession of the premises. It is conclusively shown by the record, however, that this was not done; that, in truth and in fact, the deputy sheriff to whom the warrant was delivered exhibited the same to Mrs. Dougherty but she was not then in position to move conveniently, so he did not execute the warrant by evicting her from the premises.

On the following day and during the same term of the court on petition of attorneys for defendant, the court entered an order setting aside the default and the judgment. Mrs. Adelhelm, wife of August F. Adelhelm, is an attorney at law, and the record shows that she was advised on the same date that the order vacating default and the judgment was entered that same had been entered, and that she went to the sheriff's office and informed the sheriff that an order had issued to set aside the judgment in that cause. She also went to the Clerk of the County Court where the judgment had been entered and vacated and was informed by the deputy clerk that the order vacating and setting aside the default and judgment had been issued but that no restraining order had been issued. She then went back to the sheriff's office and insisted that she was entitled to possession of the house, although the default and judgment had been vacated and set aside. At her request, the sheriff sent a deputy with her to get the key to the house and turn it over to her. When she and the deputy arrived at the house they found Mrs. Dougherty very much upset, and so Mrs. Adelhelm agreed that Mrs. Dougherty could stay in the house until the next day at 6 o'clock. The next day Mr. and Mrs. Adelhelm drove to the house of deputy sheriff Motter, picked him up, and went to the house occupied by Mrs. Dougherty. They found no one at home. The house was locked with new locks. The personal possessions of Mrs. Dougherty and her daughter were still in the house. They procured a locksmith, opened the door, and began moving the personal effects of Mrs. Dougherty from the house into a garage adjoining the rear of the house. While this was going on the Doughertys arrived and were told in effect they could get their things out of the garage and get out. The Doughertys collected their possessions in their car and drove away without any...