Fidelity & Deposit Co. of Md. v. Aultman

• Decision Date: 21 December 1909
• Court: Florida Supreme Court
• Parties: FIDELITY & DEPOSIT CO. OF MARYLAND v. AULTMAN.

50 So. 991

58 Fla. 228

FIDELITY & DEPOSIT CO. OF MARYLAND v. AULTMAN.

Florida Supreme Court

December 21, 1909

Rehearing Denied Jan. 25, 1910.

In Banc. Error to Circuit Court, Hillsborough County; J. B Wall, Judge.

Action by S. B. Aultman against the Fidelity & Deposit Company of Maryland. Judgment for plaintiff, and defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

Where a declaration states a cause of action for at least nominal damages, a ground of demurrer that no cause of action is stated is unavailing.

Where a bond is the joint and several undertaking of two or more parties, the obligors may be sued severally or all jointly.

Grounds of demurrer that reach only the extent of the damages to be recovered are unavailing, where a cause of action for at least nominal damages is stated.

In an action on a bond in which the obligation is limited in amount, it is immaterial on demurrer that the ad damnum clause states an amount in excess of the liability on the bond.

Where a cause of action is stated, improper claims for special damages in a declaration are reached, not by demurrer, but by proper motion, or by exclusion of evidence relating thereto or by proper instructions by the court to the jury.

In an action at law, where pleas do not tender an issue of fact going to the cause of action, and are wholly irrelevant and improper, they may be stricken on motion.

Pleas offered with motion to vacate a judgment by default are not a part of the record proper when they are not allowed to be filed by the court, and they should be evidenced to the appellate court by a proper bill of exceptions.

Motions based upon matters dehors the record proper are not self-supporting, and matters in pais in support of the motions should be brought to the appellate court by proper bill of exceptions.

In an action on a bond, requested charges that if a portion of the damages claimed were paid by or charged to a volunteer third party, who was to pay the same to the plaintiff, even if warranted by the evidence, are property refused when they tend to confuse the issues.

Requested charges going to the entire cause of action are properly refused after judgment by default has been rendered by the court.

The rule dispensing with proof of the execution of a bond unless the execution is denied by plea under oath does not dispense with the production of the instrument at the trial.

An admission that a bond was approved and filed is not necessarily an admission that the bond was executed by the alleged obligors.

COUNSEL J. J. Lunsford and H. P. Baya, for plaintiff in error.

H. S Hampton, for defendant in error.

OPINION

WHITFIELD C.J.

An action was brought in the circuit court for Hillsborough county by S. B. Aultman against the plaintiff in error upon an injunction bond for $1,000 given in a case wherein R. F. Bickerdike, as next friend of Elizabeth J. Bickerdike, was plaintiff and S. B. Aultman was defendant. The bond was the joint and several obligation of R. F. Bickerdike and the Fidelity & Deposit Company of Maryland, and was conditioned to 'pay to S. B. Aultman, defendant, in said suit, all costs and damages which may be sustained by him by reason of the issuance of the temporary writ in case the same shall be dissolved.' The declaration alleges that the injunction was dissolved, and that during the time the injunction was in force the defendant 'in securing a dissolution of the said injunction was compelled to expend $90 railroad fare, $800 attorney's fees, $20 for attending hearing before the court, $10 for securing affidavit and filing same in court,' amounting to $920, 'which said amount plaintiff expended by reason of the said injunction order without deriving any benefit therefrom in and about his defense in that behalf.'

The declaration was demurred to upon the grounds that (1) no cause of action is stated; (2) the action is against only one obligor; (3) the attorney's fees are not alleged to be reasonable; (4) the damages are too remote; (5) the railroad fare is not a proper claim against the bond; (6) it does not appear that the damages accrued between the issuance and the dissolution of the injunction; (7) the amount of the bond is $1,000, while damages are laid in $1,999; (8) no facts are alleged for general damages. This demurrer was overruled, and the defendant filed the following pleas:

'Defendant avers that, if it is responsible at all for attorney's fees as an element of damage in the above cause, it is only responsible for reasonable attorney's fees necessary in the dissolution of the temporary writ of injunction, and defendant denies that the sum of $800 is a reasonable attorney's fee for the dissolution of the said temporary writ of injunction.

'And for a second plea defendant denies that the plaintiff herein was compelled to expend the sum of $90 railroad fare from Chicago to Tampa and return in securing a dissolution of the temporary writ of injunction, and further denies that the said sum of $90 is a proper element of damage for which said defendant as obligee on said injunction bond is responsible.

'And for a third plea defendant denies that the complainant herein was compelled to expend the sum of twenty dollars ($20) for attending the hearing before the court at Wall Springs, and further denies that plaintiff herein was compelled to expend the sum of ten dollars ($10) in securing affidavits to be filed in the said court.

'And for a fourth plea defendant denies that, by reason of anything in the said injunction bond contained, it has become liable to the complainant as an obligee on said bond in the sum of nine hundred and twenty dollars ($920.00) by reason of the dissolution of said writ of injunction.

'And of these defendant puts itself upon the country.'

A motion to strike the pleas because inadmissible and improper and because irrelevant and immaterial, was granted after argument by counsel for both parties. No leave to file other pleas appears to have been asked. Judgment by default was entered by the court, and the cause was referred to a...