Cassels v. Ideal Farms Drainage Dist.

• Citation: 23 So.2d 247,156 Fla. 152
• Parties: CASSELS v. IDEAL FARMS DRAINAGE DIST.
• Decision Date: 14 September 1945
• Court: United States State Supreme Court of Florida

23 So.2d 247

156 Fla. 152

CASSELS v. IDEAL FARMS DRAINAGE DIST.

Florida Supreme Court

September 14, 1945

Appeal from Circuit Court, Polk County; D. O. Rogers Judge.

J. C Davant, of Clearwater, for appellant.

H. N Casebier, of Lakeland, for appellee.

BUFORD, Justice.

On the 31st day of January, 1942, the plaintiff, J. E. Cassels, filed declaration with bill of particulars attached wherein he claimed recovery of $1750 for services rendered. (On the 19th day of January, 1945, J. E. Cassels died intestate and his widow, Bettie C. Cassels, was appointed as administratix of his estate and was substituted as plaintiff.) On the 6th day of April, 1942, the defendant filed pleas to the declaration. Demurrer was interposed to some of said pleas as was also a motion to stike. The court sustained the motion as to the 2nd, 4th and 5th pleas interposed which left the case at issue on two pleas: First, 'that it never was indebted as alleged,' and third, 'that before action he discharged and satisfied plaintiff's claim by payment.'

On May 4, 1943 plaintiff joined issue on the two pleas above quoted. On August 10, 1943, the court entered an order as follows:

'This cause came on before me to be heard by agreement of counsel without a jury for final judgment. The Court finds and takes jurisdictional notice that a suit was filed on May 11, 1933, Case No. 16072, on the chancery side of this Court by A. W. Burke against the defendant, Ideal Farms Drainage District; that immediately upon the filing of the Bill of Complaint in said cause Robert T. Dewell and W. A. Hardaker were appointed receivers of the said Ideal Farms Drainage District; that thereafter D. P. Nunn substituted as receiver in said cause in the place of the said Dewell and Hardaker, and thereafter L. D. Oxford was substituted as receiver in the place of the said D. P. Nunn; that the said cause is undisposed of and is yet pending in the chancery court of Polk County, Florida; that all the assets are in the hands of a duly appointed and acting receiver and that any claim or claims of the plaintiff in this suit should be brought against said receiver and therefore this suit at law will not lie under the circumstances, no consent of the receiver to be sued in this cause having been shown.

'Wherefore, the premises considered, it is hereby ordered and adjudged that this cause be and the same is hereby dismissed at the cost of Plaintiffs.

'Done and ordered in Chambers at Bartow, Florida, this 10th day of August, A. D. 1943.'

On August 23, 1943, plaintiff moved to vacate and set aside the order of dismissal and prayed judgment for plaintiff. On the 27th day of August 1943 the Court entered an order vacating the order dismissing the cause and entered final judgment as follows:

'Final Judgment

'The Plaintiff and the Defendant being each present and represented by Counsel in open Court on the second day of April, 1943, and upon call the above case for trial, agreed and stipulated that the same should be heard, tried and determined by the Court without a jury, trial by jury being then and there expressly waived by each of said parties, and the Court having taken testimony and heard evidence offered by both parties, and having heard argument by counsel for both parties, and the Plaintiff having proven his claim and the Defendant having failed to sustain its pleas or either of them;

'It is therefore ordered and adjudged that the Plaintiff J. E Cassels, do have and recover of and from the Defendant Ideal Farms...