Davant v. Weeks

• Decision Date: 29 July 1919
• Citation: 82 So. 807,78 Fla. 175
• Parties: DAVANT v. WEEKS.
• Court: Florida Supreme Court

82 So. 807

78 Fla. 175

DAVANT v. WEEKS.

Florida Supreme Court

July 29, 1919

Error to Circuit Court, Hernando County; W. T. Bullock, Judge.

Suit by Peter L. Weeks against John C. Davant, Jr. Demurrer to plea in abatement sustained, and judgment entered upon the demurrer for plaintiff, and defendant brings error. Affirmed.

Additional Syllabus by Editorial Staff.

Syllabus by the Court

SYLLABUS

A plea in abatement, setting up a prior suit pending, should allege that such prior suit was pending at the time of the filing of such plea.

A plea in abatement, setting up a prior suit pending, should allege that the party plaintiff in the respective suits is the same.

Where pleas have been pronounced insufficient upon demurrer, the defendant is not, as matter of course, entitled to plead de novo.

The court may, on sustaining demurrer to pleas, immediately or thereafter enter final judgment on demurrer.

In order that the ruling of the court, in refusing to permit the defendant to file plea after demurrer to plea sustained, be reviewed in this court, it should be brought up by bill of exceptions.

The ruling of the trial court in denying a motion to vacate a judgment, the motion being based upon affidavits and other evidence in support thereof, will not be reviewed by this court, unless brought here by bill of exceptions.

COUNSEL L. W. Duval, of Ocola, for plaintiff in error.

Geo. C Martin, of Brooksville, for defendant in error.

OPINION

CAMPBELL Circuit Judge.

Peter L. Weeks, as plaintiff, instituted suit in the circuit court of Hernando county, Fla., on the 18th day of May, 1917 against John C. Davant, Jr., defendant. The declaration alleges the following:

'That the defendant on the 30th day of November, A. D. 1913, by his promissory note now overdue, promised to pay the First National Bank of Brooksville, Fla., $1,500, three months after date, with interest from maturity, at the rate of 10 per cent. per annum, but did not pay the same, except the sum of $750. Plaintiff alleges that said note was duly indorsed to him by said bank after maturity. Said promissory note contains the following stipulation: 'Now should it become necessary to collect this note through an attorney, each of us whether maker, security or indorser on said note, hereby agrees to pay all costs of such collection, including a 10 per cent. attorneys fee.'

'Plaintiff alleges that the defendant failed to pay said note at maturity except the sum of $750, and that it has been necessary to collect same through an attorney. Plaintiff therefore sues and claims the sum of $750, with interest thereon at the rate of 10 per cent. per annum from February 28, 1914, together with the further sum of 10 per cent. on said $750 as attorneys fee in this case'

--a copy of the note with its indorsements being filed with the declaration.

To this declaration the defendant filed a demurrer, which on September 8, 1917, was overruled, and the defendant allowed 15 days within which to plead to the declaration.

On October 11, 1917, the defendant filed a plea in abatement, a demurrer to which was, on October 22, 1917, sustained by the court below, and a judgment entered upon the demurrer for the plaintiff in the sum of $1,022.92 principal and interest, and $75 attorney fees.

The defendant sued out a writ of error from this judgment, and has assigned three errors, in the court below.

The first assignment of error is:

'That the trial court erred in overruling demurrer to the declaration herein, by order filed September 29, 1917.'

We have quoted above the declaration filed. The grounds of demurrer are:

'(1) That the declaration states no cause of action against this defendant.

'(2) That the said declaration states no facts showing the right on the part of the plaintiff to maintain this suit.

'(3) That there is a variance between the statements of the said declaration setting up, or attempting to set up, the cause of action.'

We have considered this demurrer to the declaration, and we fail to see any merit in the assignment of error which questions the ruling of the court below in overruling this demurrer. We have repeatedly held that the cause of action attached to the declaration forms no part of the declaration, unless made so by apt words. See Poppell v. Culpepper, 56 Fla. 515, 47 So. 351; Hooker v. Gallagher, 6 Fla. 351; Hoopes v. Crane, 56 Fla. 395, 47 So. 992; Groves v. McLaurin, 66 Fla. 230, 63 So. 439.

The plaintiff in error contends that in considering this demurrer two questions arise:

(1) Did the parties signing the note intend to make it an instrument under seal?

(2) Is P. L. Weeks a joint maker?

These are questions that cannot be reached by the demurrer to the declaration. The note sued upon, a copy of which is filed as 'a copy of the cause of action,' is not a part of the declaration, and in passing upon the demurrer, matters appearing upon the face of the 'copy of the cause of action' filed cannot be considered.

The declaration clearly showed upon its face that the plaintiff was the holder of the note, with authority to bring suit, and we fail to find wherein the court erred in overruling the demurrer.

The second assignment of error questions the order of the court below, in sustaining the demurrer to the defendant's plea in abatement, and in entering final judgment upon the demurrer in its order filed October 23, 1917.

The defendant, by leave of the court after demurrer to the declaration was overruled and leave granted to plead to the declaration, filed a plea in abatement instead of a plea in bar or to the merits of the cause. The plea in abatement being as follows:

'Now comes J. C. Davant, the defendant in the above-stated case, and for plea in abatement therein says: First, that on the day of the commencement of this suit there was pending in said court a certain cause wherein the First National Bank of Brooksville, Fla., was plaintiff and this defendant was defendant; that the plaintiff herein was at said time, and still is, vice president of the said bank, and that the said suit was brought on the note sued on herein. Wherefore this defendant says that this suit should not be had and maintained, and prays that the same be dismissed.'

To this plea in abatement the plaintiff demurred: (1) Because it sets up no defense to the action; (2) the plea does not allege the identity of the party plaintiff in the instant suit with the party plaintiff, wherein the First National Bank of Brooksville, Fla., was the plaintiff and J. C. Davant was defendant.

The demurrer was sustained by the court below on October 22, 1917. In its order the court refused to allow further time to file pleas, and entered judgment upon demurrer. The second assignment of error as we have said questions this ruling of the court below.

We think the plea in abatement was subject to demurrer. In the first place it does not allege that the prior suit was pending at the time the plea was filed. This court, in the case of Glasser v. Hackett, 37 Fla. 358, 20 South. 532, has held that a plea in abatement, setting up a former suit pending, must show that the former action is still pending when the plea is filed. See, also, 1 Corpus Juris, p. 94, par. 131.

The plea was also subject to demurrer, in that it shows upon its face that the party plaintiff in the first alleged suit against the defendant is not the same as the party plaintiff in the instant suit. A plea in abatement, setting up a former suit pending, should allege that the party plaintiff in the respective suits is the same. The plea in abatement in this case does not meet this...