Bell v. Niles

• Citation: 61 Fla. 114,55 So. 392
• Parties: BELL, Sheriff v. NILES.
• Decision Date: 05 May 1911
• Court: United States State Supreme Court of Florida

55 So. 392

61 Fla. 114

BELL, Sheriff v. NILES.

Florida Supreme Court, Division A.

May 5, 1911

Error to Circuit Court, Walton County; J. Emmet Wolfe, Judge.

Action by Melissa Niles against J. M. Bell, as sheriff. From a judgment for plaintiff, defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

An action of replevin is brought for the purpose of recovering the possession of personal property, and the verdict rendered therein should find and determine the right of possession to the property in dispute, and the judgment should conform to the verdict.

A special plea tendering an issue covered by the plea of not guilty should be stricken out either on motion of the plaintiff or by the court of its own motion, under section 1433 of the General Statutes of 1906, as tending to embarrass the trial, though such a plea is not for that reason demurrable.

A defendant may specially plead a former adjudication, if he sees fit to do so, but he may not so specially plead it in connection with a plea of the general issue, since a former recovery may be shown in evidence, under a plea of the general issue, as well as pleaded in bar.

In an action of replevin against an officer, no demand for a surrender of the property in question is required as a condition precedent to such action, where such officer has levied a writ of execution upon and taken possession of goods which are in the possession of one not named in such writ even though such officer acts in good faith; if such levy is unlawful as to the plaintiff he is under no duty to make a demand.

An objection is properly sustained to a question propounded by the defendant, on cross-examination of the plaintiff as a witness in her own behalf in an action of replevin, which seeks to elicit the opinion of the witness as to whether or not her right to the possession of the property in dispute had been tried in a previous action, especially when such question is objectionable for the further reason that it is not in cross of anything brought out on the direct examination of the witness.

The overruling of a demurrer to the evidence must be shown by the record proper, and, when such ruling appears only in the bill of exceptions, an assignment of error predicated thereon must fail.

In order to sustain the contention of res judicata, the complete record in the former suit, including the judgment therein should be produced and offered in evidence, and not incomplete or detached portions thereof.

Section 1522 of the General Statutes of 1906, providing that 'all final judgments and decrees, heretofore or hereafter rendered and entered in the circuit courts of this state, and certified copies thereof, shall be admissible as prima facie evidence in the several courts of this state of the entry and validity of such judgments and decrees,' has no applicability to a judgment rendered in a county judge's court.

A correct ruling of the trial court will not be disturbed because of erroneous or wrong reasons which may have been given therefor, as it is with the ruling itself, and not with the reasons therefor, with which an appellate court is concerned.

Where the evidence fully makes out the plaintiff's case, and there is no evidence to contradict or rebut it, a peremptory charge for a verdict in the plaintiff's favor is proper.

A motion for a new trial is not a part of the tecord proper but must be embodied in the bill of exceptions, together with the exception to the ruling thereon.

COUNSEL S. K. Gillis, for plaintiff in error.

Worth W. Trammell and J. J. Sullivan, Jr., for defendant in error.

OPINION

SHACKLEFORD J.

This is an action of replevin brought by the defendant in error against the plaintiff in error to recover the possession of a certain boat. A former writ of error was dismissed for the reason that the transcript of the record failed to show any final judgment. Bell, Sheriff, v. Niles, 60 Fla ----, 53 So. 741. Thereafter, on motion of the defendant, the following proceedings were had:

'In the Circuit Court of Walton County, First Judicial Circuit of Florida.

'Melissa Niles v. J. M. Bell, as Sheriff.

'Replevin.

'A verdict for the plaintiff having been rendered in the above-stated case at the spring term, A. D. 1910, of said court, and no final judgment having been heretofore entered thereon, the defendant, by his attorney, having moved the court for a final judgment herein and having notified the attorney for the plaintiff of the time and place when and where the said motion would be presented, and having considered the same:

'It is ordered and adjudged, and the judgment of the court is that the plaintiff, Melissa Niles, have and recover of and from the defendant, J. M. Bell, as sheriff, the sum of thirteen dollars and thirty-nine cents, her costs in and about the said cause expended, to be levied of the goods and chattels, lands and tenements of the defendant and to the plaintiff rendered, for which let execution issue.

'And there being no proof of any damages to the plaintiff caused by the taking and detention of the property replevied, it is further ordered and adjudged, and the judgment of the court is, that the defendant, J. M. Bell, as sheriff, be and he is hereby discharged of any damages for the taking and detention of the property replevied, and upon the payment of the said costs that he go hence without day, and that the said plaintiff take nothing in this cause for any damages she may have sustained by the taking and detention of the property replevied in this cause.

'Thus done and ordered at Pensacola, Florida, on this the 7th day of December, A. D., 1910.

J. Emmet Wolfe, Judge.'

It may well be questioned, though no point is made thereon, whether this is the proper form of the final judgment which should be rendered and entered in an action of replevin, when the chattel, to recover the possession of which the action was brought, has not been delivered to the defendant. Paragraph 1 of section 2188 of the General Statutes of 1906 is as follows:

'When Goods Not Delivered to the Defendant.--If it shall appear, upon default of the defendant, or upon trial or otherwise, that the goods described in the declaration were wrongfully taken or detained by the defendant, and the said goods shall have been delivered to plaintiff by the officer executing the writ, the plaintiff shall have judgment for his damages caused by the taking and detention, and for his costs of suit.'

We referred to and copied a portion of this statute in the opinion rendered upon the former writ of error in this case (60 Fla. ----, 53 So. 714); but we did not undertake to prescribe the form of the final judgment that should be rendered and entered. We did say that: 'A final judgment is one that adjudicates the merits of the cause or disposes of the action. A judgment that the plaintiff recover of the defendant his damages in a stated sum is a final judgment, to which a writ of error lies. If damages are waived, the defendant should be adjudged to be discharged of them.' We have several times had occasion to consider the requisites of a final judgment. See Harrison v. Thurston, 11 Fla. 307; Mitchell v. St. Petersburg & Gulf R. Co., 56 Fla. 497, 47 So. 794; Dallam v. Sanchez, 56 Fla. 779, text 785, 47 So. 871, text 873, and decisions there cited; Mizell Live Stock Co. v. J. J. McCaskill Co., 57 Fla. 118, 49 So. 501. We have further held that the action of replevin is brought for the purpose of recovering the possession of personal property. Malsby v. Gamble, 61 Fla. ----, 54 So. 766, and authorities there cited, and Covington v. Clemmons, 61 Fla. ----, 55 So. 81. We have also held that in an action of replevin the judgment must conform to or follow the verdict and should describe or identify the property. Holliday v. McKinne, 22 Fla. 153. In the instant case the verdict was as follows:

'We, the jury find for the plaintiff, Melissa Niles and find that she was as against the execution levied in the case of R. L. Studebaker v. H. E. Niles entitled to the possession of the property described in the declaration herein at the time of the institution of the suit and still is entitled to the possession of said property as against the levy of said execution, said property described as follows, to wit, one launch named Mabel. So say we all.'

In this case the possession of the chattel was retained by the plaintiff under her writ of replevin, and in this it is distinguished from Holliday v. McKinne, supra. The verdict found the right of possession to be in the plaintiff, and the judgment should have conformed to it. In other words, the judgment should determine the right of possession to the property involved in the action. See Wells on Replevin (2d Ed.) 651, note xxxiv; 34 Cyc. 1538, 1540, 1545; 18 Ency. of Pl. & Pr. 587, 599. The following authorities will also be found instructive: Everit v. Walworth County Bank, 13 Wis. 419; Carrier v. Carrier, 71 Wis. 111, 36 N.W. 626; Hanscom v. Burmood, 35 Neb. 504, 53 N.W. 371; Leonard v. Maginnis, 34 Minn. 506, 26 N.W. 733; Marrinan v. Knight, 7 Okl. 419, 54 P. 656; Webb v. Hecox, 27 Misc. 169, 58 N.Y.S. 382; Gramm v. Fisher, 3 Wyo. 595, 29 P. 377; Claudius v. Aguirre, 89 Cal. 501, 26 P. 1077; Caruthers v. Hensley, 90 Cal. 559, 27 P. 411. As we have already said, the sufficiency of this judgment is not raised before us, but gestions.

No point is made on the declaration, which is in the usual form. The defendant filed a plea of not guilty, and also the following special plea:

'That the right of the defendant to the possession of the property replevied has been adjudicated by a court of competent jurisdiction adjudging that the said property was not the property of the plaintiff, and was properly in the...