Carroll v. Gore

• Decision Date: 24 August 1932
• Parties: CARROLL v. GORE.
• Court: Florida Supreme Court

143 So. 633

106 Fla. 582

CARROLL v. GORE.

Florida Supreme Court

August 24, 1932

Commissioners' Decision.

Error to Circuit Court, Broward County; George W. Tedder, Judge.

Suit by James M. Carroll against Ollie H. Gore. To review a judgment in favor of the defendant, the plaintiff brings error.

COUNSEL

Judgment reversed in accordance with opinion.

G. H. Martin, of Ft. Lauderdale, for plaintiff in error.

OPINION

ANDREWS C.

James M. Carroll filed suit in the circuit court of Broward county upon a judgment obtained against Ollie H. Gore in the state of Illinois. From a judgment rendered in favor of defendant writ of error was taken to this court for review.

The declaration was originally in six counts, but the main issue finally involved principally the first count, which before amendment alleged substantially that the plaintiff on January 21, 1929, in the municipal court of Chicago, a court of general jurisdiction under the laws of the state of Illinois recovered a judgment of $6,812.16 and cost against the defendant, Ollie H. Gore, as shown by the record remaining in the said court, which remains in full force and effect, yet neither the defendant, nor any one for him, has paid to the plaintiff the said sum, but refuses so to do; to the damage of the plaintiff in the sum of $12,000. A copy of the judgment sued upon is attached and marked Exhibit A.

The judgment recites as a basis for its entry what is termed in that state a 'cognovit confession' by an attorney and, leaving out formal parts, the judgment is as follows:

'James M. Carroll vs. Ollie H. Gore

'No. 1241699

'Contract Confession

'Now comes the Plaintiff in this cause; also comes the defendant, who by virtue of defendant's warrant of attorney, files herein a cognovit confessing the action of the plaintiff against the defendant and that the plaintiff has sustained damaged herein against the defendant in the sum as set forth in said cognovit.

'Whereupon, the plaintiff moves the Court for final judgment herein. It is therefore considered by the Court that the plaintiff have and recover of and from the defendant Ollie H. Gore, the damages amounting to the sum of Sixty-eight Hundred twelve and 16/100 dollars ($6,812.16) in form as aforesaid confessed, together with the cost by the plaintiff herein expended, and that execution issue therefor.'

At a hearing upon motion of defendant to require plaintiff to elect which counts in the instant suit he would rely upon for recovery, the trial court entered an order requiring the plaintiff to amend the declaration, which amendment reads as follows:

'Plaintiff further says that the aforementioned judgment is based upon the obligation represented by that certain promissory note made by defendant to plaintiff, a copy of which is attached to the original declaration in this cause, marked Exhibit B and made a part hereof.' Exhibit B is as follows:

'$4,800.00

Chicago, Ill., Nov. 3rd., 1932

'On or before Ninety days after date for value received, I promise to pay to the order of James M. Carroll,

'Four Thousand Eight Hundred xx/100 Dollars at the Union Trust Co. with interest at 6% percent. per annum after ----- until paid.

'And to secure the payment of the said amount, I hereby authorize, irrevocably, any attorney of any Court of Record, to appear for me in such court, in term time or vacation, at any time hereafter, and confess a judgment, without process, in favor of the holder of this note, for such amount as may appear to be unpaid thereon, together with cost and reasonable attorney's fees, and to waive and release all errors which may intervene in any such proceedings, and consent to immediate execution upon such judgment, hereby ratifying and confirming all that my said attorney may do by virtue hereof.

'Ollie H. Gore

'Rogers Park Hotel, Chicago.'

On December 2, 1929, defendant filed pleas to the original declaration which in substance says that the court out of which judgment issued, upon which the above suit is brought, was (1) without jurisdiction as to the subject-matter, and (2) without jurisdiction of the defendant. A demurrer to the above pleas was overruled. The demurrer should have been sustained for reasons hereafter noted; however, the plaintiff in due course filed his replication thereto. In this condition the case was called for trial on January 8, 1931, when the trial court, over the objection of the plaintiff, permitted the defendant to file and 'amended' plea to the amended declaration. The amended plea contained nothing with reference to jurisdiction of 'subject matter'; it in substance avers that the said court out of which judgment issued had 'no jurisdiction of the person of the defendant,' for the reason that he was a resident of Florida when the judgment was rendered, and that there was no legal service of summons made upon him nor any process of said court giving jurisdiction; that defendant did not have his day in court, nor did he appear in the said casue, 'nor did he authorize any person, agent or attorney to appear for him, and the said judgment rendered in said court is absolutely null and void.'

Plaintiff in error first contends that the court committed error in permitting the defendant to so amend his pleas at the trial because it contained 'such new matter' as would require a 'further replication' before going to trial, and that the plaintiff was forced to trial without being given an opportunity to reply.

Our conclusion is that the amended plea did not contain such 'new matter' as would require further replication. It merely undertook to set up facts tending to support formal averments contained in the former pleas, which merely stated that the said court of Illinois was 'without jurisdiction of the defendant.' The new matter was not such as would be calculated to take plaintiff by surprise, nor such as sould necessarily warrant a continuance, had one been asked for; nor such as would necessitate a formal replication by plaintiff, before going to trial. Only those portions of the 'amended' plea were proper, if at all, which state that the defendant was not served with any process, did not appear, 'nor did he authorize any person, agent or attorney to appear for him.' There is nothing to show that the plaintiff noved for a continuance or objected to going to trial, after the amended plea was filed, but rather to the contrary.

There was no plea denying execution of the note nor one setting up fraud; therefore, if the power conferred by the 'confession provision' of the note is a valid obligation in the courts of general jurisdiction in the state of Illinois, that portion of the amended plea which states that he did not appear and was not served with process, nor 'authorized any person, agent or attorney to appear for him,' would present no triable issue for a jury.

Admitting that the amended plea contained 'new matter,' and that it is issuable, our statutes are very liberal as to amending pleadings. Under section 4295 (2629), C. G. L. 1927, a court in its discretion may, upon application, permit either party to amend any defect in any pleading either before, at the beginning, or during the trial, and in some instances after verdict, when necessary for the purpose of determining the real question in controversy in the suit between the parties. Hart v. Pierce, 98 Fla. 1087, 125 So. 243; Evans v. Kloeppel, 72 Fla. 267, 73 So. 180; Guggenheimer & Co. v. Davidson, 62 Fla. 490, 56 So. 801; Hartford Fire Insurance Co. v. Redding, 47 Fla. 228, 37 So. 62, 67 L. R. A. 518, 110 Am. St. Rep. 118.

Section 4284(2618), C. G. L. 1927, provides that, if any plaintiff does not take issue 'after notiec' upon any plea, or reply, or demurrer to the same, he shall be considered as having taken issue upon such plea, and the case shall proceed to trial accordingly. See, also, Crandall's Florida Common Law Practice, § 44. Formal notice may not be required when amended pleas are tendered in open court. A replication may be filed at the time an amended plea is filed, if the plaintiff so elects. Flournoy v. Munson Bros. Co., 51 Fla. 198, 41 So. 398. In fact, a cause may be properly submitted to the jury notwithstanding the plaintiff has filed no replication to amended pleas containing new matter. American Tie & Timber Co. v. Washington, 62 Fla. 117, 57 So. 201. See, also, circuit court rule 20, in law cases. As already observed, the original pleas to which plaintiff had replicated were unquestionably bad and insufficient; however, the general rule in such cases is that a 'bad replication is a good answer to a bad plea.' Oxford Lake Line v. First National Bank, 40 Fla. 349, 24 So. 480. About the only instance where error may be committed in allowing a cause to go to trial, in the absence of any replication to an amended plea made at the trial, would be where the new plea would require more than a mere similiter to put it in issue. Muller v. Ocala Foundry & Machine Works, 49 Fla. 189, 38 So. 64; Globe Theater & Amusement Co. v. Watt, 62 Fla. 196, 57 So. 201. That condition does not exist in the instant case. An examination of the original pleas, filed December 2, 1929, to the declaration will disclsoe that the demurrer thereto should have been sustained, as then merely allege in general terms that the court, out of which the judgment issued in Illinois, was without jurisdiction of the subject-matter of the suit and without jurisdiction of the defendant, without stating in what particulars or upon what grounds.

Directing our attention now to the more important issue presented here with reference to whether the record pleaded and placed in evidence shows that proper jurisdiction was obtained in the court of Illinois 'over the defendant,' it will be observed that in...