Caldwell, for Use and Benefit of Hawkins v. Massachusetts Bonding & Ins. Co.
| Decision Date | 01 April 1947 |
| Citation | 29 So.2d 694,158 Fla. 677 |
| Court | Florida Supreme Court |
| Parties | CALDWELL, Governor, for Use and Benefit of HAWKINS v. MASSACHUSETTS BONDING & INSURANCE CO. |
Rehearing Denied April 16, 1947.
Appeal from Circuit Court, Palm Beach County; Jos. S White, judge.
Carroll Dunscombe, of Stuart, for appellant.
Earnest Lewis & Smith, of West Palm Beach, for appellee.
This is the second appearance of this case here (see Holland, as Governor ex rel. Hawkins v. Massachusetts Bonding & Insurance Company, 156 Fla. 583, 23 So.2d 761), the difference being that in that suit Holland was named as Governor and in this suit his successor, Caldwell, is named.
After the mandate went down following the result of disposition on the former appeal the plaintiff filed a new suit on the same cause of action alleging some items of damage which had not been alleged in the former action. Under the former appeal we affirmed a judgment entered on dumurrer sustained to declaration. After demurrers had been sustained to the original and several amended declarations, defendant moved to dismiss, which motion was as follows: 'Comes now the defendant in the above entitled cause by its undersigned attorneys and respectfully moves the court to dismiss the above entitled cause for the reason that the certain Final Judgment, bearing date the 6th day of September, A.D. 1945 and recorded in the minutes of this Circuit Court in Book Number 51 at page 278, made and rendered by this Honorable Court in that certain cause lately pending in the above entitled Court, wherein Spessard L. Holland, as Governor of the State of Florida for the use and benefit of E. L Hawkins, as Administrator d. b. n. of the estate of Wise Perry, deceased, was plaintiff, and the defendant herein was defendant therein, a copy of said Final Judgment being hereto attached, marked Exhibit 'A' and made a part hereof as if set forth in haec verba, is Res Judicata of this cause and defendant presents herewith the affidavit hereto attached, marked Exhibit 'B'.'
And therewith filed affidavit by his attorney as follows:
'Before me, a Notary Public duly authorized to administer oaths, personally appeared R. K. Lewis, who being by me first duly sworn deposes and says that he is an attorney at law of counsel for the defendant in each of the two cases pending before the Circuit Court of Palm Beach County, Florida entitled as follows:
'Case No. 1:
'Spessard L. Holland, as Governor of State of Florida, ex rel. E. L. Hawkins as Administrator d.b.n. of the estate of Wise Perry, deceased, Plaintiff,
v.
Massachusetts Bonding & Insurance Company, a Surety Corporation authorized to do business in Florida, Defendant.
'Case No. 2:
'Millard F. Caldwell, as Governor of the State of Florida, for the Use and Benefit of E. L. Hawkins, as administrator D.B.N. of the Estate of Wise Perry, Deceased, Plaintiff,
v.
Massachusetts Bonding & Insurance Co., Defendant.
that the case aforesaid resulted in a Final Judgment, copy of which is hereto attached, marked Exhibit 'A' and said Judgment was subsequently affirmed by the Supreme Court of the State of Florida in the following decision, to-wit: Holland, Governor, ex rel Hawkins v. Massachusetts Bonding & Ins. Co., 156 Fla. 583, 23 So.2d 761; that the bond or cause of action sued upon, parties and their respective capacities, are identical in both of the cases aforesaid.
'Further affiant sayeth not.'
On hearing, after due notice, the Circuit Court made the following order:
'This is a second suit filed in this court between the same parties and upon the identical cause of action. Final Judgment for defendant was entered in the former action and the Judgment has been affirmed by the Supreme Court of Florida. See Holland, Governor, ex rel Hawkins v. Massachusetts Bonding & Insurance Co., 156 Fla. 583, 23 So.2d 761. In effect the present suit is no more than a continuation of the former one, and, under the circumstances, this Court must take notice of the record in that proceeding. The Final Judgment was that 'plaintiff do take nothing by his writ, and that the defendant go hence without day.' Plaintiff may not prosecute the same action. See Flynn-Harris-Bullard Co. v. Hampton, 70 Fla. 231, 70 So. 385. 'Thereupon it is ordered and adjudged that this action be and the same is hereby dismissed, with costs in the sum of $10.00 taxed against plaintiff, for which let execution issue.
'Done and ordered, this December 16, A. D. 1946.'
We think that it was sufficiently made to appear to the court below that the second suit was upon the identical cause of action upon which the first suit was brought and that by the final judgment against the plaintiff in the first case the second suit on the same cause of action was barred.
It is stated in 30 Am.Juris. page 910, Sec. 165, as follows: ...
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