Caldwell v. People's Bank of Sanford

• Citation: 75 So. 848,73 Fla. 1165
• Parties: CALDWELL et al. v. PEOPLE'S BANK OF SANFORD.
• Decision Date: 25 May 1917
• Court: United States State Supreme Court of Florida

75 So. 848

73 Fla. 1165

CALDWELL et al. v. PEOPLE'S BANK OF SANFORD.

Florida Supreme Court

May 25, 1917

Error to Circuit Court, Seminole County; Jas. W. Perkins, Judge.

Action of assumpsit by the People's Bank of Sanford against D A. Caldwell and others. Judgment for plaintiff, and defendants bring error. Affirmed in part, and reversed in part.

Syllabus by the Court

SYLLABUS

A writ of error does not lie to an order refusing to dissolve an attachment. Where it is desired to have such order reviewed by the appellate court, the proper course to pursue is to have the bill of exceptions, upon the trial of an issue of fact before the jury in the attachment proceedings, settled and signed and filed as in other cases and incorporate the same in the transcript, after final judgment has been rendered in favor of the plaintiff in the main action, to which a writ of error has been sued out.

Upon a traverse in attachment proceedings of the debt or sum demanded, the better practice to pursue is to make seasonable application to the court, in accordance with the provisions of section 2120 of the General Statutes of 1906, in all cases where the issues have not already been made up in the main suit, to require the formal pleadings in the main suit to be made up and the issues therein settled by special order without reference to the time fixed by the rules or statutes for pleading in regular course, in order that the issues in the main case thus made up may be submitted to the court or jury along with the issues raised by the traverse of the special ground of attachment alleged.

Actions in assumpsit and attachment proceedings ancillary thereto are so far severable that on writ of error the judgment may be affirmed as to the former and reversed as to the latter.

General objections to evidence proposed, without stating the precise grounds of objections, are vague and nugatory, and are without weight before an appellate court, unless the evidence objected to is palpably prejudicial, improper, and inadmissible for any purpose or under any circumstances.

A party who objects to the competency of a witness or to proffered evidence should state specifically the grounds of his objection, in order to apprise the court and his adversary of the precise objection he intends to make.

An appellate court will consider only such grounds of objection to the admissibility of evidence as were made in the court below, the plaintiff in error being confined to the specific grounds of objection made by him in the trial court, and only such of the grounds so made below as are argued will be considered by an appellate court.

It is the declared policy of this court to confine the parties litigant to the points raised and determined in the court below, and not to permit the presentation of points, grounds or objections for the first time in this court when the same might have been cured or obviated by amendment if attention had been called to them in the trial court.

Section 1450 of the General Statutes of 1906 does not require that the precise form of declarations in the different actions therein set forth be followed, but, on the contrary provides: 'The following forms shall be sufficient in the statement of the declaration of the respective causes of action therein set forth. They and like forms may be used with such modifications as may be necessary to meet the facts of the case; but nothing herein contained shall render it erroneous or irregular to depart from the letter of such forms, so long as the substance is expressed without prolixity.'

While it may be the safer and better practice in an action upon promissory notes for the pleader to allege in the declaration the place of payment of such notes, where this is not done and the defendant does not question the sufficiency or correctness of the declaration by demurrer, motion, or otherwise, there is no fatal variance between the allegations of the several counts of the declaration, which do not allege the place of payment of such notes, and the several notes offered in evidence, especially when copies of such notes are attached to the declaration, in compliance with the requirements of paragraph 2 of section 1449 of the General Statutes of 1906, so that the defendants could have been in no way taken by surprise when the notes were offered in evidence. The defendant will not be permitted to raise such question of variance for the first time in the appellate court.

Section 1448 of the General Statutes of 1906 does not require that each count of a declaration shall set forth the amount of damages claimed by the plaintiff. It is sufficient if the declaration concludes with the amount of damages claimed.

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.

Section 1610 of the General Statutes of 1906 expressly provides 'No judgment after the verdict of a jury, or an award of arbitrators, shall be stayed or reversed for any defects or fault in the original writ, or for a variance between the writ and declaration, or for any mispleading, insufficient pleading, or misjoining of the issue, or for any faulty count in the declaration where the same declaration contains one count which is good, for any informality in entering up the judgment by the clerk, or for any imperfection, omission, defect or lack of form in any pleading not affecting the merits of the cause, or for any irregularity in any writ of venire facias, or in the drawing, summoning or empaneling of petit jurors; unless the party making the objection was injured by the irregularity, or unless the objection was made before the returning of the verdict.'

Motions in arrest of judgment reach only such errors as are apparent on the record proper. Question of variance between the allegation and proofs cannot be considered on a motion in arrest of judgment.

It is not sufficient merely to repeat the error assigned and state that in the opinion of counsel the action or ruling of the court complained of constitutes error, or that an inspection of the record upon the point in question will show that error was committed. Unless the error complained of is so glaring or patent that no argument is needed to demonstrate it, counsel must call the attention of the court to the specific points upon which he relies to show error, otherwise the court will feel warranted in treating such assignment as abandoned.

Where an assignment of error is based upon the overruling of a motion 'to set aside the judgment in the above-entitled cause and to quash the writ of execution therein issued, and to impanel and swear a jury in the said cause to assess the damages of the defendants upon the bond of attachment filed by the plaintiff in said cause,' an appellate court will consider only such grounds of the motion as are argued, and, where no argument is made in support of any of the grounds, such assignment presents nothing for consideration and will be treated as abandoned.

Assignments of error which are expressly or impliedly abandoned, or which are based upon rulings of the trial court upon the admission or rejection of evidence to which exceptions were not clearly reserved, will not be considered by the appellate court. (Per Ellis, J.)

Under the provisions of section 2111 of the General Statutes of Florida of 1906, the existence of one or more of the special grounds named in section 2102 causes a debt not due to become due in case of attachment. (Per Ellis, J.)

Section 2107 of the General Statutes of 1906 requires the plaintiffs in attachment in cases where the debt is not due to produce, in addition to the affidavit as to the amount of the debt and existence of the special grounds of attachment enumerated in section 2102, proof before the officer granting the writ by affidavit or otherwise of the existence of such special grounds. (Per Ellis, J.)

The additional proof required by section 2107 of the General Statutes of 1906 should consist of a statement of facts which, being admissible as evidence, tend to establish one or more of the grounds enumerated in section 2102, General Statutes. (Per Ellis, J.)

A statement or recital in an affidavit submitted under section 2107, General Statutes 1906, that C., one of the partners said to a director of the creditor corporation, that he and one other partner had conveyed their entire interests in all the partnership property to the third copartner, taking a mortgage from him on the property for their interests therein, that the sale was made to improve the financial condition of the business and help the creditors get the amounts due them, that at the time of the transfer the business was heavily indebted, and no notice had been given to the creditors of the transfer, does not show that any of the property of the copartnership had been concealed nor that it was fraudulently secrted or disposed of for the purpose of avoiding the payment of debts. (Per Ellis, J.)

If the affidavit submitted under section 2107, General Statutes 1906, as proof of the existence of one or more of the grounds for attachment enumerated in section 2102, General Statutes, contains no statement of fact amounting to evidence of a fraudulent disposing or secreting of property by defendant to avoid payment of debts, the proceedings are coram non judice and should be quashed on motion. (Per Ellis, J.)

The additional proof required by section 2107, General Statutes 1906, should be submitted in the form of affidavits or statements of witnesses reduced to writing sworn to and filed with the main affidavit. It is part of the record, as much so as the main affidavit in attachment, and, where a...