Ball Bros. v. Holland

• Decision Date: 13 August 1918
• Citation: 76 Fla. 268,79 So. 635
• Court: Florida Supreme Court
• Parties: BALL BROS. v. HOLLAND.

79 So. 635

76 Fla. 268

BALL BROS. v. HOLLAND.

Florida Supreme Court

August 13, 1918

Error to Circuit Court, Jackson County; C. L. Wilson, Judge.

Action by Sam Holland against Wesley Ball and others. Judgment by default against Wesley Ball and George Ball, Jr., as partners and individually, and they bring error. Affirmed.

Syllabus by the Court

SYLLABUS

A motion in arrest of judgment must be based upon matters appearing on the face of the record.

Motions in arrest of judgment arise from intrinsic causes appearing upon the face of the record, and must be founded upon such matter as would, upon demurrer, have been sufficient to overthrow the action or plea.

A motion in arrest of judgment, where the verdict and judgment are in favor of the plaintiff, will not be granted if the declaration on its face shows a valid cause of action and is not demurrable.

Where a praecipe for summons is filed and summons is issued thereon to three persons and served on two of them returnable to April rule day, on which day the two enter an appearance, and the declaration in assumpsit is not filed till August, but default judgment for failure to plead is entered, subsequent to which time during a term of the circuit court, the amount due was ascertained by a jury and judgment rendered thereon a motion in arrest of judgment is properly denied.

COUNSEL Thos. E. Walker, of Marianna, for plaintiffs in error.

J. H Finch, of Marianna, for defendant in error.

OPINION

WHITFIELD, J.

On March 23, 1916, Holland by counsel filed a praecipe for summons against Wesley Ball and George Ball, Jr. individually and as partners as Ball Bros., and against W. O Butler, Jr., returnable to the rule day in April. Service was made March 24th on Wesley Ball and George Ball, Jr. On April 3d, an appearance was entered for Ball Bros. On August 5th a declaration containing common counts in assumpsit was filed wherein Wesley Ball and George Ball, Jr., individually and as partners, were made defendants. On September 4th a default judgment for failure to plead was entered by the clerk against Wesley Ball and George Ball as partners and as individuals. At a term of court subsequently held, the amount due was ascertained by a jury, and judgment rendered therefor. Defendants moved in arrest of judgment on the following grounds:

'First. Because the declaration filed in the above-entitled cause was not filed within the time required by law.

'Second. Because said declaration was filed after more than two rule days had elapsed from the return day of the writ, without the knowledge or consent of the defendants or by leave of the court first had and obtained.

'Third. Because the plaintiff was without authority of law to file his declaration when he did without due and legal notice in writing served upon these defendants, together with proof of same and an order of the court authorizing said declaration to be filed.

'Fourth. Because plaintiff amended his pleadings without notice of any kind to these defendants.

'Fifth. Because the pleadings in said cause connects W. O. Butler, Jr., as a codefendant, and he was dismissed from said cause, to the prejudice of these defendants, without authority of law.'

This motion in arrest was denied, and the defendants took writ of error and assigned the denial of the motion in arrest of judgment as error.

A motion in arrest of judgment must be based upon matters appearing on the face of the record.

Motions in arrest of judgment arise from intrinsic causes appearing upon the face of the record, and must be founded upon such matter as would, upon demurrer, have been sufficient to overthrow the action or plea. Sedgwick v. Dawkins, 18 Fla. 335.

A motion in arrest of judgment, where the verdict and judgment are in favor of the plaintiff, will not be granted if the declaration on its face shows a valid cause of action and is not demurrable. Hyer v. Vaughn, 18 Fla. 647; Ruff v....